HON. LAWAL ABUBAKAR GARBA v. ALL PROGRESSIVES CONGRESS & ORS
(2019)LCN/13204(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/YL/56/19
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
HON. LAWAL ABUBAKAR GARBA – CROSS APPELLANT. Appellant(s)
AND
1. ALL PROGRESSIVES CONGRESS
2. ABDULRAUF ABDULKADIR MODIBBO
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – CROSS RESPONDENTS. Respondent(s)
RATIO
WHEN A CAUSE OF ACTION ACCRUES
In determining when a cause of action accrues for the purpose of statute of limitation reliance was placed on the following cases, ETHIOPIAN AIRLINES VS. AFRIBANK NIG. PLC & ANOR (2006) LPELR ? 5613 AT 11 ? 16 Paragraphs A ? B, FALANA & ORS VS. OLORO & ORS (2O12) LPELR 14794 AT 39 ? 48 Paragraphs B ? E, KPATI & ORS VS. PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2O17) LPELR ? 43365 AT 21 ? 24 Paragraphs B ? C and OLATERU & ORS VS. OPIC (2018) LPELR AT 12 Paragraphs B ? E amongst others. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Federal High Court Yola, delivered on 6th March, 2019, presided over by A. M. Anka, J.
This is a cross appeal to Appeal No. CA/YL/50/19 emanating from the same decision of 6th March, 2019 in Suit No. FHC/YL/CS/5/2019.
The background facts as given by the Appellant is that following the release of the time table for political activities by the 3rd Cross Respondent in preparation for the 2019 General Elections, the 1st Cross Respondent organized a primary election for the selection of its flag bearer for the seat of House of Representative for Yola North/Yola South/Girei Federal Constituency on the 7th day of October, 2018. The primary election of 7th October was said to have been inconclusive and could not have produced a candidate. The Cross Appellant petitioned to the chairman of the APC?s Appeal panel on Primary Election, the appeal was not determined by the appeal committee. The National Working Committee of the APC proceeded to nominate the 2nd Cross Respondent (Abdulrauf Abdulkadir Modibbo) as its flag bearer for the seat
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of House of Representative for Yola North/Yola South/Girei Federal Constituency in the 2019 General Elections. The Cross Appellant was aggrieved by the decision of the National Working Committee filed an Originating Summons before the Federal High Court.
Objections were taken as to the competence of the suit being a pre-election matter with Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999, 4th Alteration Act, 2017 in mind. The trial Court in its judgment held that the suit was filed outside the prescribed time frame and therefore dismissed the suit. The Cross Appellant was aggrieved by the decision appealed against same. Two issues were distilled for the determination of the Appeal thus:
i. ?Whether having regard to the facts and circumstances of this case, most especially the inconclusive nature of the primaries election of the 2nd Cross-Respondent for Yola North/Yola South/Girei Federal Constituency held on the 7th October, 2018, the learned trial Judge did not err when he held that the suit instituted by the Cross-Appellant herein was statute barred and consequently struck out same.
?(Distilled from grounds 1 and 2 of the Notice of Appeal)
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ii. Whether taking into consideration the provisions of Section 87(9) of the Electoral Act (2010) and the fact that no candidate emerged for the Yola North/Yola South/Girei Federal Constituency as at 7th October, 2018, the trial Judge did not err when in applying Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 restricted himself only to the event of 7th October, 2018.?
(Distilled from ground 3 of the Notice of Appeal).
While the 1st Cross Respondent distilled the following issues for the determination of the appeal thus:
i. ?Whether given the entire circumstances of this case in relation to the very nature of pre-election matter particularly under Section 87 of the Electoral Act, 2010 as amended, the Lower Court?s decision to dismiss the suit on the premise that it is statute barred is correct and sustainable? (Grounds 1 & 2 of the Notice of Appeal).
?ii. Whether considering the facts in support of the originating summons, the questions for adjudication and the reliefs sought, the trial Judge was correct to have held that the cause of action of the
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Cross Appellant arose on the 7th October, 2018
(Ground 3 of the Notice of Appeal).
The 2nd and 3rd Cross Respondents did not file any brief of argument. The 2nd Cross Respondent aligned himself with the Cross Appellant. While the 3rd Cross Respondent maintained a neutral ground.
In arguing the appeal the learned counsel to the Cross Appellant Y. D. Dangana Esq., adopted and relied on his brief of argument filed on 15/4/19 as his argument in the cross appeal in urging us to allow same. The two issues formulated by the Cross Appellant were argued together. Learned counsel reviewed the provisions of Section 87 of the Electoral Act, 2010 (as amended) which made provisions for the nomination of candidates for elections under it. It was submitted that the Constitution of the 1st Cross Respondent, Article 20 is in line with the provisions of Section 87 of the Electoral Act, 2010 (as amended). Learned counsel highlighted the guideline for nomination of candidates for the House of Representative election in line with the Constitution of the 1st Cross Respondent.
?It was submitted that the 1st Cross Respondent?s primary election
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conducted for Yola North/Yola South/Girei Federal Constituency on the 7th day of October, 2018 was not in compliance with the provisions of Section 87 of the Electoral Act, the Constitution of the 1st Cross Respondent and the Guidelines for nomination of candidates for the 2019 General Elections, 2019 Indirect Primaries attached to the Affidavit in support of the Originating Summons, Exhibits LAG 7 and LAG 8 respectively. It was argued that the primaries could not have produced a candidate for the Federal Constituency in issue to warrant the 1st Cross Respondent to have submitted the name of the 2nd Cross Respondent (Abdulrauf Abdulkadir Modibbo) to the 3rd Cross Respondent (INEC) as its candidate. It was contended that the occurrence of the action complained of arose on the 18th of October, 2018 when the name of the 2nd Cross Respondent was submitted to the 3rd Cross Respondent despite the inconclusive nature of the primaries conducted by the 1st Cross Respondent. It was reargued that the primaries of 7th October, 2018 did not produce any candidate of the 1st Cross Respondent for the purpose of the 2019 General Elections. It was submitted that a cause of
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action arises from the date the breach complained of occurred. See ATTORNEY GENERAL OF ADAMAWA STATE VS. THE ATTORNEY GENERAL OF THE FEDERATION (2O15) ALL FWLR (PT.797) 597; PLATEAU CONSTRUCTION LTD VS. AWARE (2O14) 6 NWLR (PT 14O4) PAGE 519 AT PP. 542-543 Paragraphs H ? C, and U. M. B. LTD VS. C.B.N. (2O17) ALL FWLR (PT. 880) PAGE 823 AT 844 Paragraphs D ? H. It was argued that the trial Court erred when it held that the cause of action arose on the 7th October, 2018. See MULIMA & ANOR VS. USMAN & 3 ORS (2O14) 1?2 SC (PT. 111) PG 126 AT 164 ? 5 LINES 25 ? 25 as to what makes up a cause of action. The learned counsel argued that the primaries took place on the 7th October, 2018 but, that the cause of action upon which the Respondent/Cross Appellant could sue arose on the 18th October, 2018 when the 1st Cross Respondent submitted the name of the Appellant/2nd Cross Respondent as the candidate of the 1st Cross Respondent. It was concluded on this issue that the trial Court was wrong to have held that the cause of action arose on 7th October, 2018 and not the 18th October, 2018 as there was no candidate for the seat of
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Yola North/Yola South/Girei Federal Constituency as at 7th October, 2018.
In Response, the learned counsel to the 1st Cross Respondent Sule Shuaibu Esq., relied on his brief of argument filed on 25/4/19 as his argument in this cross appeal in urging us to dismiss same and affirm the judgment of the trial Court. The two issues raised were argued together. In determining when a cause of action accrues for the purpose of statute of limitation reliance was placed on the following cases, ETHIOPIAN AIRLINES VS. AFRIBANK NIG. PLC & ANOR (2006) LPELR ? 5613 AT 11 ? 16 Paragraphs A ? B, FALANA & ORS VS. OLORO & ORS (2O12) LPELR 14794 AT 39 ? 48 Paragraphs B ? E, KPATI & ORS VS. PLATEAU INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2O17) LPELR ? 43365 AT 21 ? 24 Paragraphs B ? C and OLATERU & ORS VS. OPIC (2018) LPELR AT 12 Paragraphs B ? E amongst others. The effect was contended to be that once an action is instituted or brought outside the time prescribed by law or statute, in this case Section 285(9) of the 1999 Constitution, Fourth Alteration Act, such action cannot be sustained as the
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Plaintiff therein would have lost his right of action. Reference was made to the affidavit in support of the Originating Summons in this appeal by the Cross Appellant at the lower Court which revealed that the Cross Appellant had objected to and contested the mode by which the primary election of the 1st Cross Respondent was conducted on 7th October, 2018 thus his petition, ?Exhibit LAG6? at pages 46 ? 47 of the printed records to express his dissatisfaction and a call that he be returned as winner rather than the 2nd Cross Respondent. Also referred to are paragraphs 12 and 23 of the Cross Appellant?s affidavit in support of the Originating Summons. Also, Paragraphs 12 ? 17; 19 ? 23 at pages 13-15 of the printed records of appeal. It was submitted that the trial Court was right to have held that the action before it is statute barred.
On the other hand, without conceding that the cause of action arose on 17th and 18th October, 2018 as made out by the Cross Appellant, in the alternative, it was submitted that nomination of a candidate by a political party is purely an intra party affair which the Court has no
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jurisdiction to entertain. Reference was made to the provisions of Section 87(9) of the Electoral Act, 2010 as amended and the case of ANGADI VS. PDP (2018) 15 NWLR 1 AT 34 ? 36 Paragraphs C ? A, PEOPLES DEMOCRATIC PARTY (PDP) & ORS VS. BARRISTER SOPULUCHUKWU E. EZE & ANOR (2017) LPELR ? 42563, UGWU & ORS VS. PDP & ORS (2015) LPELR ? 24352 and ARDO VS. NYAKO & ORS (2014) LPELR – 22 878. It was submitted that the Cross Appellant admitted that the 1st Cross Respondent?s Primary Election was conducted on 7th October, 2018 by alleging that the primary election conducted on the above date did not comply with the provisions of Section 87 of the Electoral Act and the provisions of ?Exhibits LAG7 and LAG8? (the 1st Cross Respondent?s Constitution of the party and the guidelines to the primary Elections) respectively. Also, the petition written by the Cross Appellant showing his dissatisfaction to the primary elections of the 1st Cross Respondent which took place on 7th October, 2018 which contradicts the Cross Appellant?s assertion that the cause of action arose on 17th and 18th October, 2018.
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It was concluded that the trial Court was right to have held that the cause of action arose on 7th October, 2018 and therefore statute barred having been instituted outside the 14 days stipulated under Section 285(9) of the Constitution, as amended. ?
I would utilize the issues as distilled by the 1st Cross Respondent and argued together as appropriate in determination of the appeal. There is no dispute as to what a cause of action is or when it arises. The question is: how does one determine when a cause of action has accrued and how is the period of limitation determined? It is necessary to examine the Writ of Summons and Statement of Claim alleging when the wrong was committed which gave the Plaintiff the cause of action alongside the date on which the Writ of Summons was filed. Once the time on the writ is beyond the period allowed by the limitation law, the action is statute barred. The parties are agreed as to when a cause of action accrues and the period of limitation as provided under Section 285(9) of the Constitution as amended to be 14 days. The parties are at a cross road only as to when the cause of action arose in this case. From the affidavit
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of the Cross Appellant in support of the Originating Summons, the Cross Appellant objected to and contested the mode upon which the primary election of the 1st Cross Respondent was conducted on the 7th October, 2018 and alleged that it was inconclusive, after which he wrote a petition, ?Exhibit LAG6? asking that he rather than the 2nd Cross Respondent be made the candidate of the 1st Cross Respondent on the basis that he was a serving member of the House of Representatives of the Federal Constituency of Adamawa State. See, paragraphs 12 ? 17 and 19 ? 23 of the affidavit at pages 13 ? 15 of the printed records of appeal. In paragraph 12 of his affidavit in support of the Originating Summons for instance, the Cross Appellant deposed to his dissatisfaction with the way the Primary Election was carried out for his constituency. In paragraph 23, the Cross Appellant deposed to his complaint/petition to the Chairman of the 1st Cross Respondent and the Appeal panel on the Primary Election. The petition against the conduct of the primary election dated 9th October, 2018 was attached as Exhibit LAG6. Therefore, there is no doubt that the
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primary election to elect a candidate to represent the 1st Cross Respondent for the Yola North/Yola South/Girei Federal Constituency of Adamawa State in the National Assembly took place on the 7th October, 2018. In Paragraph 13 of the affidavit evidence of the Cross Appellant at page 13 of the printed record of appeal, it was alleged that the 1st Cross Respondent had violated its guidelines for nomination of candidates for the 2019 General Election which goes to prove the commencement of a cause of action on 7th October, 2018 and not 17th and 18th October, 2018 as now made out by the Cross Appellant in this appeal. In paragraph 13 of the affidavit in support of the Originating Summons the Cross Appellant deposed clearly to his effort to see that the accreditation carried out was in line with the 1st Cross Respondent?s guidelines for nomination of candidates for the 2019 General Election which was unfruitful as the committee was bent on using the list of accredited delegates for the already concluded Senatorial Primaries. The contents of paragraph 13 of the supporting affidavit is clearly an admission of the dissatisfaction of the Cross Appellant against
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the conduct or procedure adopted by the 1st Cross Respondent?s Election Committee on the 7th October, 2018 which is clearly when the cause of action arose. Further, ?Exhibit LAG6?, at pages 46 ? 47 of the printed record of appeal, the petition/complaint of the Cross Appellant is self explanatory as to the date the cause of action arose. The primary election had taken place. The argument that the primary election had not taken place as it was not conclusive as at 7th October, 2018 but concluded on 17th and 18th October, 2018 when the name of the 2nd Cross Respondent was submitted to the 3rd Cross Respondent is a lame argument that does not hold water. On the other hand the petition written by the Cross Appellant was headed thus:
?PETITION AGAINST THE CONDUCT OF PRIMARIES FOR YOLA NORTH, YOLA SOUTH, GIREI FEDERAL CONSTITUENCY ? ADAMAWA STATE.?
The prayer sought read as follows:
?In view of the above facts, it is my humble prayers that the Election be cancelled and the party should give me automatic tickets as a serving member (MHR) to run as its candidate in the 2019 General Election to avoid exclusion
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by INEC vis–vis the deadline for submission of candidates name.?
The petition was dated 9th October, 2018. The Cross Appellant sought that the election which had taken place be cancelled and that he should be given automatic ticket as a serving member of the House of Representative. The Cross Appellant cannot therefore rightly argue that the cause of action arose on 17th and 18th October, 2018 but, it is clear that the Cross Appellant?s grouse emanated from the conduct of the Primary Election of the 1st Cross Respondent of 7th October, 2018 from the caption of the petition, its contents and the prayers sought. The action that led to this appeal was filed on the 29th of October, 2018 which is beyond the 14 days as required by law under Section 285(9) of the 1999 Constitution, Fourth Alteration Act, 2017. Therefore, the trial Court?s holding that the action before it is statute barred cannot be faulted. The decision of the National Working Committee (NWC) of the 1st Cross Respondent of 17th October, 2018 and the forwarding of the name of the 2nd Cross Respondent on 18th October, 2018 to the 3rd Cross Respondent are consequences of
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the outcome of the primary election complained about which took place on 7th October, 2018. The consequence is not the day the cause of action arose. See, a recent decision of this Court and division, in Appeal No. CA/YL/23/19: Garba G. Hamman Julde and Abdulsalam Gambo Mubarak & 2 Ors (Unreported) delivered on 8th April, 2019. I hold that the cause of action the crux or the grouse of the Cross Appellant arose on 7th October, 2018 when the 1st Cross Respondent conducted the primary election in the Cross Appellant?s Federal Constituency. The trial Court was right to have held that the action before the lower Court was statute barred by virtue of the provisions of Section 285(9) of the Constitution, as amended having been filed outside the 14 days stipulated under the above Section of the Constitution, as amended. This view cannot be faulted.
Having affirmed the decision of the learned trial Judge that the action before the trial Court was statute barred there would be no need to go into resolution of the alterative argument to the effect that the trial Court had no jurisdiction to determine an intra-party affair by virtue of Section 87(9) of the
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Electoral Act, 2010 as amended. Considering the Alterative argument would be an academic exercise in futility which would not be of any benefit to a successful party.
In sum, the Cross Appeal fails and it is hereby dismissed. The Judgment of the trial Court in FHC/YL/CS/5/2019 delivered on the 6th of March, 2019 is hereby affirmed.
Parties to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Y. D. Dangana Esq. with him, Idris M. Talle Esq.For Appellant(s)
Sule Shuaibu, Esq. – for 1st Cross Respondent.
S. Atung, Esq. – for 2nd Cross Respondent.
Ishaka Bala, Esq. – for 3rd Cross Respondent.For Respondent(s)
Appearances
Y. D. Dangana Esq. with him, Idris M. Talle Esq.For Appellant
AND
Sule Shuaibu, Esq. – for 1st Cross Respondent.
S. Atung, Esq. – for 2nd Cross Respondent.
Ishaka Bala, Esq. – for 3rd Cross Respondent.For Respondent