ALL PROGRESSIVE CONGRESS v. ENGR. YAKUBU NUHU DANJA & ORS
(2019)LCN/13518(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of June, 2019
CA/K/250/2019
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
ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. ENGR. YAKUBU NUHU DANJA
2. HON. AMIRU TUKUR
3. INDEPENDENT NATIONAL
ELECTORAL COMMISSION Respondent(s)
RATIO
DEFINITION OF A “CAUSE OF ACTION”
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.
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.
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 ADEFOPE-OKOJIE, J.C.A.
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 in this appeal was the 1st Defendant before the lower Court, while the 1st Respondent was the Plaintiff, in an Originating Summons filed by him against the Appellant (APC), the 2nd Respondent (Hon. Amiru Tukur) and the 3rd Respondent (INEC) as 1st, 2nd and 3rd Defendants respectively.
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 Federal Republic of Nigeria, 1999 (as Amended), the Electoral Act, 2010 (as Amended), as well as the
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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 Plaintiff, having secured the highest number of votes at the primary election conducted by the 1st Defendant,
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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 perpetual injunction restraining:
a. The 1st Defendant, whether by itself, National Chairman, Officers
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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, whether by itself, National Chairman, Officers, Agents privies, or through any person or persons howsoever,
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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.
Upon being served with the Originating Summons, the Appellant filed a counter affidavit together with a Preliminary Objection challenging the competence of the suit and the jurisdiction of the trial Court to hear and determine same, on the ground of being statute barred. The learned trial Judge in his ruling on the 18th of April, 2019, dismissed the Appellant?s Preliminary Objection and entered judgment for the 1st Respondent by granting the reliefs sought in the Originating Summons.
Dissatisfied with the judgment, the Appellant challenged it on five (5) grounds in a Notice of Appeal filed on 26/4/2019.
The Appellant?s Brief of Argument was filed on the 20th May, 2019, settled by its Counsel Hassan M. Liman SAN, Ishaka Mudi Dikko SAN and Y.D. Dangana Esq of Liman Liman & Co.
?Two issues were formulated by the Appellant in its
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Brief of Argument, namely: –
1. Whether taking into cognizance the entire facts and circumstances of this matter before the trial Court, vis a vis the Appellant?s Notice of Preliminary Objection filed before the Trial Court, the Originating Summons was not statute barred and ought to have been dismissed.
2. Whether juxtaposing the affidavit evidence in support of the Originating Summons and the counter affidavit of the Appellant, the 1st Respondent can be said to have proved his case with preponderance of evidence as to be entitled to the reliefs sought in the Originating Summons.
The 1st Respondent?s Brief of Argument was filed on 24th of May 2019 prepared by Mahmud Abubakar Magaji SAN, Kelechi Chris Udeoyibo, Okechukwu Edeze, Kenechukwu Azie Esq, Nurudeed Abdulmumin of Mahmud & Co., in which the two issues formulated by the Appellant were adopted as the issues for determination in this appeal.
The 3rd Respondent?s Brief of Argument, filed on 28/5/19 was settled by Usman Dalhatu, Douglas Najime, Timothy Tor Kyuga of Usman Dalhatu & Co., in which the following were the issues raised for determination:
1. Whether
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the Trial Court was right in holding that this suit was not statute barred by virtue of the provisions of Sections 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Whether having regards to the provisions 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 instead of 4th December 2018 when it was commissioned.
In arguing the Appeal, the learned Silk for the Appellant defined jurisdiction and submitted that the guiding principles in the exercise of jurisdiction were laid down by the Supreme Court in Madukolu v. Nkemdilim (1962) 2 CNLR 341 and Fasakin Foods (Nig). Ltd v Shosanya (2006) 10 NWLR (pt. 987) 126 at 157 Paras F-G, that where a Court lacks jurisdiction, even parties cannot by agreement confer jurisdiction on such a Court. In addition, that where a Court lacks jurisdiction, the appropriate action to be taken is to make an order striking out the action. Objection to the jurisdiction of a Court can be raised at any stage of the proceedings, he submitted, even for the first time at
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the Supreme Court without necessarily obtaining leave. He cited Buremoh v Akande (2017) LPELR ? 41565 (SC), AND NNAKWE VS. STATE (2013)7 SCJN 179.
The learned Silk submitted that the 1st Respondent?s suit qualifies as a pre-election matter based on the decision in Salim V.C.P.C (2013) 6 NWLR (Pt. 1351) 501 at 524 Para H and having been filed outside the constitutionally required period of 14 days, is in clear violation of Section 285 (9) of the Constitution (Fourth Alteration No. 21) Act 2017 and Section 87 of the Electoral Act 2010 (as amended), thus the learned trial judge was wrong when he held otherwise.
He argued that the Originating Summons was assessed on the 15th of November, 2018 while the affidavit and the Exhibits in support were filed on the 4th of December, 2018 and that the actual date of the filing of the Originating Summons was 4th December, 2018 being the date the Commissioner for Oath stamped the affidavit and exhibits attached. He referred to Order 3 Rule 9 of Federal High Court Rules 2009 and further submitted that an Originating Summons is only competent when at the time it is presented for filing, it is accompanied
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by an affidavit and copies of all the exhibits to be relied upon. That having filed the affidavit and exhibits attached on the 4th of December 2018, the 1st Respondent?s suit is deemed to have been properly filed on the 4th of December 2018. He cited Olley V. Tunji (2013) ALL FWLR (Pt. 687) 625 at 659 ? 670 Paras A ? C; Speaker Bendel State House of Assembly v Oloyo (1983) 2 SC 85.
Learned Counsel also pointed to the fact that there is manifest contradictions between the Affidavit in Support of the Originating Summons and the Further and Better Affidavit of the 1st Respondent in respect of the date he became aware that the name of the 2nd Respondent was submitted to the 3rd Respondent instead of his name. He contended that the learned trial judge was wrong to have relied on the Further and Better Affidavit instead of the affidavit in support of the Originating Summons alone in determining the issue of Jurisdiction.
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Counsel again submitted that the learned trial judge ignored the most important documentary evidence which is the 3rd Respondent?s calendar for the conduct of the 2019 General Election which contained 18th October as
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the last day for the submission of the list of candidates for the National Assembly by Political Parties. He argued that the Appellate Court is empowered to examine and evaluate Exhibits where the learned trial judge fails to do so. He cited Abi v. CBN (2012) 3 NWLR (pt. 1286) 1 at 27 Paras D ? H.
He urged the Court to hold that the Originating Summons was filed outside the constitutionally prescribed 14 days when counting from 18th day of October, 2018 to the 14th of December 2018. Stating that assuming but not conceding the learned trial judge was right in holding that the Originating Summons was filed on the 18th of November 2018, the suit of the 1st Respondent was yet filed outside the statutory 14days.
Counsel contended that where a Plaintiff?s suit is statute barred, it is not a defence that he was not aware of the accrual of the cause of action, citing Ajibona Vs. Kolawole (1996) 10 NWLR (Pt. 476) 22 and Akibu v. Azeez (2003) 5 NWLR (Pt. 841) 643 at 673 Paras D ? F. He urge the Court to so hold.
The learned Silk also referred to the unreported case of Alhaji Lawal M. Liman & 4 ORS Vs. All Progressive Congress & Anor Appeal No. CA/A/95/2019
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where the Court of Appeal interpreted the provision of Section 285 (9) of the 4th Alteration to the 1999 Constitution submitting that once a suit is filed outside the statutorily prescribed period, the effect is that the Court is stripped of the jurisdiction to hear and determine the said suit. He cited Sylva v. INEC (2015) 16 NWLR (Pt. 1486) pg. 576 at 630 paras A ? C and Ibrahim v. Lawal (2015) 17 NWLR (pt. 1489) 490 and 523 Paras F ? H.
He urged us to set aside the ruling of the trial Court and uphold the Appellant?s Notice of Preliminary Objection and dismiss the Originating Summons filed by the 1st Respondent at the trial Court for been statute barred.
In reply, the learned Silk for the 1st Respondent submitted that the factual situation that gave rise to the 1st Respondent?s action was when the 2nd Respondent refused to withdraw his candidature, in line with the directive of the National Chairman of the Appellant, to enable the Appellant forward the 1st Respondent?s name to the 3rd Respondent in line with Section 87 (4) (c) (ii) of the Electoral Act 2010.
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He argued that the
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provision of Section 285 (9) of the Constitution was interpreted by the Court in Ikechukwu Vs. Nwoye (2015) 3 NWLR (Pt. 1446) 367 at 402, submitting that time will start to run from the date of the occurrence of the event, decision or action. He also cited Kasim v. N.N.P.C (2013) 10 NWLR (Pt. 1361) 46 at 66 Paras D ? E.
Counsel argued that the act or event complained of accrued or took place on the 14th of November 2018, submitting that the law is that the onus of proving when a cause of action accrued to the Plaintiff is on the Defendant who is relying on the defence of limitation. He cited Savannah Bank Of Nigeria Ltd vs. Pan Atlantic Shipping & Transport Agencies Ltd & ANOR (1987) 1 NWLR(Pt. 49) 212.
The learned Senior Counsel submitted further that the burden on the Defendant will be discharged where the Plaintiff states the date of the accrual of the cause of action in his Originating Process, as the Court will merely compare the date with the date when the action is filed in order to determine whether the action was filed within time or not, citing Saleh v. Muhammed (2010) 12 NWLR (Pt. 1209) 613 at 628 ? 629. Where there is,
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however, no clear indication in the Originating Summons as to the exact date when the cause of action accrued, the Court will look at other relevant documents attached to various affidavit in arriving at such conclusion. He cited Kasandubu Vs. Ultimate Petroleum Ltd (2008) 7 NWLR (Pt.1086) 274 at 302 Paras B-D. The unreported case of Alhaji Lawal M. Liman & 4 ORS vs. APC & ANOR cited by the Appellant?s Counsel, instead supports the 1st Respondent?s case and not that of the Appellant, he said, urging the Court to apply the same to this case.
On the Appellant?s contention that the Originating Summons was filed on the 4th of December and not 15th November, learned Silk submitted that the Originating Summons was filed on the 15th of November. He made reference to the Registrar?s Statement in compiling the Record of Appeal on page 1 of the record. He argued that the law is trite that the mistakes/errors of the registry of the Court during the process of filing process of Court should not be visited on the litigant. He cited Famfa Oil Ltd. Vs. A. G. Fed (2003) 18 NWLR (Pt. 852) 453 at 431 Paras F ? H, and 467 Paras A – C.
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The learned Counsel to the 3rd Respondent, Timothy Tor Kyuga Esq, agreed with the Appellant that the action of the 1st Respondent is statute barred, having filed same on the 15th of November, 2018, as the cause of action accrued on the 18th day of October 2019 and the lower Court had a duty to dismiss the suit for want of jurisdiction, thereby rendering the ruling/judgment of the trial Court a nullity. He cited Anachebe v. Ijeoma & ORS (2014) LPELR ? 23181 (SC) and Akinbinu v. Oseni (1992) LPELR 341 (SC) (1992) 1 NWLR (Pt. 215) 97. He also argued in line with the Appellant?s Counsel, that the Originating Summons was not competent as was contrary to Order 3 Rule (2) of the Federal High Court (Civil Procedure) Rules Supra.
I shall adopt the Appellant?s issues in the determination of this appeal, however amended for succinctness, as follows:
1. Whether the lower Court was right in holding that this suit was not statute barred.
2. Whether the 1st Respondent can be said to have proved his case by preponderance of evidence to be entitled to the reliefs sought.
The 1st issue
Whether the lower Court was
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right in holding that this suit was not statute barred.
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.
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
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Page 160 at 199 Para C-D per Okoro JSC.
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.
The Appellant?s learned Counsel has contended that in the determination of the accrual of the cause of action one is confined to the affidavit in support of the Originating Summons and not to the Further Affidavit filed by the 1st Respondent. I however do not agree, as all the affidavits filed by both parties are taken into consideration in the determination of the Originating Summons. These are akin to pleadings, similar to where a Defendant raises issues in his Statement of Defence, the Plaintiff is at liberty to join issues by filing a Reply. The Reply is a constituent part of the Plaintiff?s pleadings.
In the determination of the accrual of the cause of action, the affidavits filed by the 1st Respondent shall accordingly be considered.
The next question is when, in the instant case, did the cause of action accrue?
?While the
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learned Silk for the Appellant contends that the cause of action accrued on the 20th October, 2018, his learned counterpart for the 1st Respondent asserts the date to be the 12th November. 1st Respondent?s Counsel refers to the Further Affidavit of the 1st Respondent in response to the Appellant?s Counter Affidavit to the Originating Summons, contained at Page 355 of the Record.
Paragraphs ix-xiv of the affidavit are as follow:
ix. That the Plaintiff was shocked when he received a letter from the Katsina State Chapter of the All Progressives Congress notifying him that the 1st Defendant had forwarded the name of the 2nd defendant who did not win the primary election for the office of member representing Bakori/Danja Federal Constituency of Katsina State.
x. That he became aware of the alleged submission of the name of the 2nd Defendant of the 3rd Defendant on 12th November, 2018, when the Katsina State Chapter of the All Progressive Congress wrote a letter to the Plaintiff communicating same to him. Attached hereto and marked as Exhibit MAM 1 is the letter dated 12th November 2018.
xi. That in the letter referred to in paragraph
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5 (x) supra, the Katsina State Chapter of the All Progressive Congress attached for the plaintiff?s perusal, a letter dated 20th October, 2018, which the State Chapter of the 1st Defendant wrote to the National Chairman, Comrade Adams Aliyu Oshiomhole to correct the wrongful submission of the name of the 2nd Defendant to the 3rd Defendant, Attached hereto and marked as Exhibit MAM 2 is the letter dated 20th October, 2018.
xii. That the National Chairman of the 1st Defendant, Comrade Adams Oshiomhole investigated the issue brought to his attention and found out that the 2nd Defendant?s name was wrongly sent to the 3rd Defendant.
xiii. That the National chairman of the 1st Defendant wrote a letter to the 2nd Defendant asking him to withdraw his candidature within Twenty-Four (24) hours and failure to do so would result to the 2nd Defendant being arrested by relevant security agencies for conspiracy and forgery. Attached hereto and marked as Exhibit MAM 3 is the letter dated 14th November, 2018.
xiv. That the action of the 1st Defendant by substituting the name of the Plaintiff is aimed at oppressing the Plaintiff and swindle him from
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the mandate given to him by members of the Bakori/Danja Federal Constituency of Katsina State.
Underlining Mine
The learned Silk for the Appellant, denying 12th November as the date knowledge of the submission of the 2nd Respondent came to the 1st Respondent, relies on Exhibit 6 exhibited to the 1st Respondent?s Affidavit in support of the Originating Summons.
This letter is set out below:
?ALL PROGRESSIVES CONGRESS
KATSINA STATE
20th October, 2018.
The National Chairman,
All Progressives Congress (APC),
No. 40, Blanyre Street,
Wuse II,
Abuja.
Sir,
NOMINATION OF A WRONG CANDIDATE FOR THE FEDERAL HOUSE OF REPRESENTATIVES SEAT IN BAKORI/DANJA FEDERAL CONSTITUENCY OF KATSINA STATE TO THE INDEPENDENT NATIONAL ELECTORAL COMMISSION ? INEC
With due sense of humility and respect, I am pleased to draw the attention of our great party (APC) to the nomination of a wrong candidate to the Independent National Electoral Commission ? INEC in respect of Bakori/Danja Federal Constituency of Kaduna State.
Indirect primary elections for the House of Representatives seats were
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conducted transparently and peacefully in all the fifteen (15) Federal Constituencies across the state on 5th October, 2018 in conformity with the provisions and guidelines for nomination of candidates for the 2019 General Elections, the party?s Constitution, the 2010 Electoral Act as amended and the Constitution of the Federal Republic of Nigeria.
The results of the primary election for Bakori/Danja Federal Constituency is as follows:
1. HON. AMIRU TUKUR IDRIS = 305
2. ENGR. YAKUBU NUHU DANJA = 314
Therefore, by the virtue of the above primary election result, Engr. Yakubu Nuhu Danja who scored the highest number of votes cast was returned as the winner of the primary election.
In view of the above, the Katsina State Chapter of our great party (APC) is appealing to the National Chairman for correction of the said anomalies in order to maintain the peaceful co-existence within the Katsina State APC family and avoid the breakdown of law and order in the state.
See attached:
The list of successful candidates, the results of the Bakori/Danja Federal Constituency primary elections duly signed by all the agents, the election
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committee report and the security reports for your necessary action.
Mr. Chairman Sir, we seek this opportunity to appreciate your wonderful efforts for taking it upon yourself the responsibilities to see that no one is denied his due deserve.
We support you and implore you to keep the flag flying high and continue on your uncompromising stance in defence of justice and fair play, championing the cause of freedom and liberty, so that your dream for our great party (APC) would be achieved as a sanctuary for all who believe in the rule of law and cherish democratic rule.
Please accept the assurances of our highest regards and esteem.
Your faithfully,
For: ALL PROGRESSIVES CONGRESS ? APC
SHITU S. SHITU
State Chairman
cc: The President,
Federal Republic of Nigeria
The Executive Governor
Katsina State Government House.?
In the 1st Respondent?s Further Affidavit referred to above, 1st Respondent denies this, contending that he only became aware when he received the letter from the State Chapter of the Party on 12th November, 2018 enclosing their letter dated 20th October 2018 to the
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Headquarters of the Appellant, requesting them to correct the wrongful submission of the name of the 2nd Respondent to the 3rd Respondent.
The letter, Exhibit MM1, attached to the Further Affidavit, at Page 358 of the Record, is set out below:
?ALL PROGRESSIVES CONGRESS
KATSINA STATE
12th November, 2018.
ENGR. YAKUBU NUHU DANJA
No. 5 New Barhim Layout
Off State Secretariat Road
Katsina
Sir,
NOMINATION OF A WRONG CANDIDATE FOR THE FEDERAL HOUSE OF REPRESENTATIVES SEAT IN BAKORI/DANJA FEDERAL CONSTITUENCY OF KATSINA STATE TO THE INDEPENDENT NATIONAL ELECTORAL COMMISSION ? INEC
With great sense of humility and respect we write this letter to you.
We wish to bring to your knowledge/information that the name of Hon. Amiru Tukur Idris who came second in the primary election of the All Progressives Congress in Bakori/Danja Federal Constituency in Katsina State was erroneously forwarded to the Independent National Electoral Commission (INEC) as the candidate of the party for the general election instead of your name.
We wish to inform you that we have written a letter to the National
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Chairman of our great party, appealing to him to correct the said anomalies on order to maintain the peaceful co-existence within the Katsina State APC family and the National Chairman of our great party has promised to sort out and correct the wrongful substitution of your name.
Attached here for your kind perusal is the letter written to the National Chairman of our great party.
We employ you to exercise restraint, as this issue will be sorted out soon.
Please accept the assurances of our highest regards and esteem.
Yours faithfully,
For: ALL PROGRESSIVE CONGRESS ? APC
SIGNED
SHITU S. SHITU
State Chairman?
The lower Court held:
?From the facts and circumstances in this suit, this suit is not statute barred as there is no any correspondence (sic) apart from the letter written to the Plaintiff by the State Chairman of the 1st Defendant dated 12/11/2018 informing the Plaintiff of the wrongful substitution of his name with the 2nd Defendant. All the claim of the 1st Defendant that the Plaintiff knows about the wrongful substitution on 18/10/18 or 20/10/18 as the case may be are speculative as
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there is no any document or correspondence indicating that the Plaintiff knew about the substitution on those two dates.”
I must disagree with the lower Court.
In a recent unreported decision of the Supreme Court, in the case of Jafar Sani Bello v Abba K. Yusuf SC.363/2019, the Court held, in the lead judgment of M.D. Muhammad JSC, as follows:
?I am unable to agree with learned counsel that appellant?s cause of action begins to run, by virtue of the limitation prescribed under Section 285 (9) of the 1999 Constitution as altered, from the time he becomes aware of 1st respondent?s non-compliance which, on the latter?s participation in the primary election, creates appellant?s right to sue. The clear and unambiguous section neither makes knowledge on the part of the appellant a pre-condition to the filing of his action nor excludes the date his cause of action accrued in the determination of when time begins to run against him. By the section, appellant?s knowledge of 1st respondent?s non-compliance with 2nd respondent?s Constitution and Electoral Guidelines is immaterial. To hold that time
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begins to run against the appellant only on his becoming aware of 1st respondent?s non-compliance and further exclude the date appellant?s cause of action accrues, in determining when limitation begins to run against him, is to read into the section what it does not contain. No Court has the jurisdiction of doing so. See DANGANA & ANOR V. USMAN & ORS (2012) LPELR ? 25012 (SC) and GANA V. SDP & ORS (2019) LPELR ? 47153 (SC).
By the section, the limitation period is 14 days and since neither knowledge nor the date of the accrual of the cause of action is made a precondition for the determination of the period, the lower Court in excluding appellant?s knowledge of 1st respondent?s non-compliance and taking into congnisance the date his cause of action arises in its computation of the limitation period is beyond reproach.?
See also Ajibona v Kolawole (1996)10 NWLR Part 476 Page 22 at 36, where the Supreme Court held, per Ogwuegbu JSC:
?All limitation laws have for their object the prevention of the rearing up of claims that are stale. To contend that the Defendant must prove
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Plaintiff?s knowledge of such adverse possession for time to start to run ?is to import a strange condition into the Limitation Law.”
See also Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 202 Para D-H per Okoro JSC.
It is thus clear that knowledge of the 1st Respondent is not a pre-condition to the filing of the action. Time does not therefore begin to run from when the 1st Respondent became aware of the submission of the 2nd Respondent?s name and such cannot be read into Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 as amended by the Constitution of the Federal Republic of Nigeria (Fourth Alteration No. 21) Act 2017 provides:
?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 time began to run, I hold from the date of
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the submission of the 2nd Respondent?s name. No date has however been given by the 1st Respondent in his Originating Summons. What can be inferred is that by the letter of complaint exhibited to the Originating Summons dated 20/10/18, the 2nd Respondent?s name had been submitted.
In determining whether an action is statute barred, the Court examines the originating process with the facts therein, to know when the wrong in question occurred and compares it with the date the originating process was filed in Court. See Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7 NWLR Part 1563 Page 42 at 68 Para A per Peter-Odili JSC.
Even though the parties are in disagreement with the date the Originating Summons was filed, with the 1st Respondent alleging that it was filed on the 15th November 2018, which the date written thereon and the Appellant alleging that it is the 4th December, 2018, the date placed on the accompanying Affidavit by the Commissioner for Oaths, both dates, I hold, run foul of Section 285(9) of the Constitution (as amended) Supra.
?The period from 20th October to either 15th November 2018 or 4th December 2018 is well
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over 14 days. The 1st Respondent?s suit was accordingly barred by statute at the time of its institution before the lower Court and should have been struck out by that Court.
I accordingly resolve the 1st issue for determination in favour of the Appellant.
Having held the action of the 1st Respondent to have been barred by statute, it is unnecessary to proceed to a deliberation of the 2nd issue of whether the 1st Respondent proved its case to be entitled to judgment, as the consequence of a case barred by statute is that a Plaintiff who might otherwise have had a cause of action, loses the right to enforce it by judicial process. See Sylva v Independent National Electoral Commission (2015) 16 NWLR Part 1486 Page 576 at 630 Para A-C per Okoro JSC; Buremoh v Akande (2017) 7 NWLR Part 1563 Page 74 at 105 Para A-B per Aka?ahs JSC; Okafor v. Bende Divisional Union, Jos Branch (2017) 5 NWLR Part 1559 Page 385 at 422 Para B-C per Kekere-Ekun JSC.
?
This appeal accordingly succeeds. The judgment of the lower Court is set aside. The Originating Summons filed by the 1st Respondent is, in consequence, struck out. Each party shall bear their
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respective costs.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the judgment of my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I concur with her that the 1st Respondent?s originating summons was filed at the lower Court in clear violation of Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No. 21) Act, 2017, and the recent decision of the Apex Court in the case of Jafar Sani Bello v. Abba K. Yusuf SC 363/2019, same having been filed outside the statutory period of 14 days from the date of occurrence of the cause of action.
This appeal is thus meritorious, and is hereby allowed. In the result, the judgment of the lower Court is hereby set aside and in its place, I enter an order striking out the 1st Respondent?s originating summons. Parties to bear their respective costs.
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Appearances:
Y. D. Dangana with him, Amanzi F. Amanzi and Danlami A. MammanFor Appellant(s)
1st Respondent present
M.A. Magaji, SAN with him, Udzahu Medugu, M. S. Sheka and A.D Ahmed for the 1st Respondent.
Ibrahim K. Bawa with him, Monsuru Lawal for the 2nd Respondent.
D. T. Najime for the 3rd Respondent
For Respondent(s)
Appearances
Y. D. Dangana with him, Amanzi F. Amanzi and Danlami A. MammanFor Appellant
AND
1st Respondent present
M.A. Magaji, SAN with him, Udzahu Medugu, M. S. Sheka and A.D Ahmed for the 1st Respondent.
Ibrahim K. Bawa with him, Monsuru Lawal for the 2nd Respondent.
D. T. Najime for the 3rd RespondentFor Respondent
