JUNGUDO HARUNA MOHAMMED v. ALL PROGRESSIVES CONGRESS & ORS
(2019)LCN/13742(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of August, 2019
CA/J/244/2019
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
JUNGUDO HARUNA MOHAMMED Appellant(s)
AND
1. ALL PROGRESSIVES CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. BASHIR UBA MASHEMA Respondent(s)
RATIO
WHETHER OR NOT IT IS EVERY ERROR THAT RESULTS IN REVERSAL OF JUDGEMENTS ON APPEAL
Slips and errors are inevitable in judgments prepared by fallible human beings. That is why every judicial system makes provision for appeals. But it is not every error that results in reversal of judgments on appeal. The Courts, particularly in this country, recognize a difference between innocuous errors, slips and misstatements of the Court on one hand and errors which substantially affect the decision complained of and so can be properly described as having caused miscarriage of justice and require intervention: see Adeogun v. Fashogbon (2011) ALL FWLR (PT 576) 485 @ 501 @ 502 (S.C.); Baba v. Civil Aviation (1991) 2 NSCC 145 @ 161; Ibidokun v. Adarole (2001) 12 NWLR (PT 727) 268 @ 313; Iwok v. University of Uyo (2011) 6 NWLR (PT 1243) 211 @ 241, Olonade v. Sowemimo (2014) NWLR (PT 1428) 473 @ 493. PER UGO, J.C.A.
WHETHER OR NOT APPEAL AND CROSS-APPEAL MEAN THE SAME THING
As I said earlier in the main appeal, appeal and cross-appeal mean exactly the same thing: the prefix ?cross? attached to a cross-appeal only existing to differentiate it from the notice of appeal filed earlier. The authorities counsel cited in support of his argument are also of no relevance. Section 285(11) of the Constitution, unlike Sections 138 and 149 respectively of the 2002 and 2006 Electoral Acts considered Buhari v. Obasanjo (2005) 13 NWLR (PT 941) 1, Adegbuyi v. Mustapha (2010) ALL FWLR (PT 524) 185-186 and Aregbesola v. Oyinlola (2011) 9 NWLR (PT 1253) 453 cited by counsel, does not differentiate between a successful petitioner and respondent but simply says:
An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against. PER UGO, J.C.A.
THE ESSENCE OF AN APPEAL
An appeal simply continues the case before lower Court so parties are required to keep faith with their case as pleaded and contested there: SeeAjide v. kelani (1985) 3 NWLR (PT 12) 248 @ 269 (S.C.). PER UGO, J.C.A.
WHETHER OR NOT A DOCUMENT IS DEEMED TO HAVE BEEN PROPERLY FILED WHEN IT IS DEPOSITED IN A COURT OFFICE WITH THE PROPER OFFICER ASSIGNED WITH THAT RESPONSIBILITY
In any event, it is settled that a document is deemed to have been properly filed when it is deposited in a Court Office (as was done in this case) with the proper officer assigned with that responsibility: See Mohammed v. Musawa (1985) 3 NWLR (PT 11) 89 @ 95 paragraph D-F which cited with approval by the apex Court in Akpaji v. Udemba (2009) ALL FWLR (PT 471) 811 @ 823. That position of the law ought to even apply with more force given the modern system of e-filing of processes prevalent in the Federal Courts of this country which, as shown in the counter affidavit of cross-appellant and we must also take judicial notice, requires litigants to undergo a rather complicated process to pay filing fees even after depositing their processes with the Registry of the Court. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the 3rd June 2019 judgment of the Federal High Court, Bauchi Judicial Division, upholding the preliminary objection of 1st and 3rd Respondents that the suit of appellant being a pre-election matter was statute barred having not been filed within 14 days of the accrual of his cause of action contrary to Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
The background
?Appellant, a member of 1st Respondent?s political party who contested its primary election of 04/10/2018 along with 3rd Respondent and four others for the right to contest the 2019 General Elections as its candidate for Jama?are/Itas-Gadau Federal Constituency of Bauchi State (a Constituency made up of Jama?are Local Government of appellant and Itas-Gadau Local Government), filed a Writ of Summons on 8th November 2018. His case was that on the said 4/10/2018, 1st respondent conducted its said primary election and concluded it the same day in Jama?are Local Government, there being no successful primary election in
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Itas-Gadau Local Government, according to him, and he polled highest votes of 3384, with 3rd Respondent coming 3rd with 2084 votes, and he was declared winner of the said election, which he added was peaceful and transparent with no one contesting his victory, but that when the result was announced four days later on 8/10/2019 at 1st Respondent?s Secretariat in Abuja, it was 3rd respondent who was announced as the winner. Dissatisfied with that action, he submitted a petition to the National Appeals Committee of 1st Respondent, which on 15/10/2018 upheld it and declared him the winner of 1st respondent?s said primary election and its candidate of the party for the General Election. Despite that declaration, he said, 1st respondent still forwarded 3rd respondent?s name to 2nd respondent as its candidate, which action he claimed he only became aware on 25/10/2019 when 2nd respondent (INEC) published candidates for the General Election. He thereupon filed his writ of summons at the Federal High Court Abuja on 08/11/2018 claiming against the respondents:
(a) A Declaration that the plaintiff (he) is the winner of the Direct Primary Elections
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conducted by the 1st Defendant and supervised by the 2nd Defendant on the 4th day of October, 2018 for the purpose of electing the party candidate for the February 2019 General Elections/National Assembly election into the Jama?are/Itas-Gadau Federal Constituency of Bauchi State.
(b) A Declaration that the 3rd Defendant whose name was forwarded by the 1st Defendant and accepted by the 2nd Defendant as the party?s candidate for the 2019 February General Election/Notional Assembly election into the Jama?are/Itas-Gadau Federal Constituency is not the lawfully elected candidate of the party at the Direct Primary election organized and conducted by the party on the 4th October, 2018.
(c) A Declaration that it is mandatory, pursuant to the constitution of the 1st Defendant, the Electoral Act to, and the 1st Defendant Guidelines for the nomination of candidates for the 2019 General Election-Direct primaries, to nominate him (the Plaintiff), being the winner of the said direct primary election whose election was also confirmed by the National Appeals Committee of the party for the 2019 February General Election into the
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Jama?are/Itas-Gadau Federal Constituency of Bauchi State.
(d) A Declaration that the refusal of the 1st Defendant to submit the name of the plaintiff to the 2nd defendant as its candidate for the 2019 February General Election/National election into the Jama?are/Itas-Gadau Federal Constituency Bauchi State is inconsistent with the provisions of the party?s constitution, Electoral Act 2010 as amended, 1999 Constitution of the Federal Republic of Nigeria as amended, 1st Defendant Guidelines for the nomination of candidates for the 2019 general Elections-Direct primaries, and all other party regulations and therefore unlawful, null, void and of no effect whatsoever.
(e) An order of injunction restraining the 2nd Defendant either by itself, officers, agents, privies, staff or through any persons(s) however from recognizing, accepting, or dealing with any other name submitted to it in anyway whatsoever as the 1st Defendant?s candidate in the February 2019 National Assembly Election into the Jama?are/Itas-Gadau Federal Constituency Gadau Federal Constituency of Bauchi State save the name of the Plaintiff.
(f) An order
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Directing the 1st Defendant to comply with the provisions of its Constitution, the Electoral Act, result of the 2018 Federal House of Representatives General Elections for the Nomination of candidate for the 2019 General Elections – Direct Primaries organized and conducted by the part for the selection of its candidate for the general elections into the Jama?are/Itas-Gadau Federal Constituency of Bauchi State and all other regulations and reports issued by it particularly the reports of the National Appeal Committee of the party for the 2019 Primary elections and submit the name of the plaintiff as the validly nominated candidate for Jama?are/Itas-Gadau February 2019 General/National Assembly Election having emerged winner of 1st defendant?s direct primary election.?
(g) An order directing the Defendants particularly the 2nd Defendant to recognize, accept and deal with the Plaintiff as the flag bearer of the 1st Defendant for the February 2019 General Election/National Assemble Election having emerged winner of the 1st defendant?s direct primary election.?
?
Pleadings were exchanged and each of the Respondents joined
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issues with him denying that he won the said election or that there was no election in Itas/Gadau Local Government of the Constituency. First and 3rd respondents also raised preliminary objections to the suit on, among other grounds, that it was barred by Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the same having not been filed within 14 days of the occurrence of the event complained of by appellant.
Following a trial in which the preliminary objection was also argued but adjourned for ruling with the final judgment, the lower Court on 03/6/2019 delivered its 39-page judgment in which, while reviewing the facts of the case, it erroneously referred to the suit as having been commenced by originating summons, got it right almost immediately thereafter by referring to the proper suit of appellant commenced by writ of summons and filed on his behalf by his then counsel Adekola Mustapha Esq., correctly reproduced his reliefs, only for it to relapse immediately in the next one passage following the reliefs to again reference strange materials obviously lifted erroneously from another case, after which he got the
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facts all correct in the rest of the judgment. It finally ended up upholding 1st and 3rd Respondent?s preliminary objection that appellant?s action was caught by Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria having not been filed within 14 days of the accrual of his cause of action which His Lordship held occurred on the 8th day of October 2018 when 1st Respondent announced 3rd respondent as its candidate. That was after it had rejected the contention of 3rd Respondent that it had also lost jurisdiction over the case because as at the 03/6/2019 date of its judgment the case had exceeded by 28 days the 180-days? limit set by Section 285(10) of the same 1999 Constitution of the Federal Republic of Nigeria for it to deliver judgment.
The Appeal
Peeved by that judgment, appellant has brought the instant appeal. He wants us to overturn that decision by holding that he filed his action within time and proceed to exercise our powers of re-hearing under Section 15 of the Court of Appeal Act 2004 and determine the case on its merits in his favour, he, according to him, having proved it.
?
Third respondent is
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also dissatisfied with the rejection of his contention that the action had lapsed even before the judgment and has accordingly cross-appealed, even as the competence of that cross-appeal is the subject of intense dispute by appellant.
Briefs of argument were exchanged by appellant and all three respondents who also all raised preliminary objections to the appeal or portions of it.
It must be noted, peremptorily, that the Notice of Preliminary Objection of 2nd respondent was not signed by its counsel and so was in turn objected to by Mr. Oru for appellant who aptly described it as a worthless paper. Mr. Mbasavdue for 2nd Respondent had no response to it. I shall accordingly discountenance the said unsigned preliminary objection of 2nd respondent and the arguments canvassed by it in respect of it.
?
From his four grounds of appeal appellant distilled the following three issues for determination:
1. Whether the learned trial judge was right when in his judgment he brought in the facts of another unrelated case in the consideration and determination of the appellant?s case.
2. Whether or not the learned trial judge considered or
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properly considered the evidence before the Court before finding that the cause of action arose on 8th October 2018.
3. Whether in the circumstances of this case the learned trial judge was right when he held that the appellant?s action was statute barred having been filed more than 14 days statutorily allowed after the occurrence of the act, event or decision complained of on the 8th of October 2018.
The objection of first respondent is that even though appellant filed this appeal on 14/06/2019, he did not serve it his Notice of Appeal until 20/6/2019 thereby denying it the opportunity to cross-appeal, file Respondent?s Notice or even participate in the compilation of Records of Appeal, because at the said time of service the Registrar of the lower Court had already compiled the Records of appeal. In the alternative, it framed four issues for determination thus:
1. Whether the facts as identified in ground 1 of the Notice of appeal as read by the learned trial judge when delivering judgment is substantial and fatal as to have occasioned miscarriage of justice to the appellant.
2. Whether the learned trial judge was not right
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when he considered the Writ of summons and the Statement of claim in ascertaining when the cause of action of the appellant accrued.
3. Whether the learned trial judge was not right when he held that the appellant?s action was statute barred having not been filed within 14 days of the occurrence of the event, decision or action complained of.
4. Whether the learned trial judge was right when he refused to consider the oral and documentary evidence having arrived at the finding that the action was statute barred.
?
Third respondent?s objection was only directed at Ground 1 of appellant?s appeal and issue 1 culled from so he brought it by way of motion on notice but argued it in his brief of argument. The pith of his objection is that the issues raised by appellant in his Ground 1 about foreign materials referenced by the trial judge did not arise from nor form the ratio of his decision and therefore cannot form a ground of appeal as grounds of appeal can only arise and be directed at the decision or reasons for the decision. On the merits of the appeal, 3rd respondent framed for determination the following two questions:
1.
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Whether the trial judge imported unrelated facts and relied on it in the determination of this suit and whether appellant has suffered any miscarriage of justice.
2. Whether the trial judge was right to hold that by virtue of the provisions of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration Act No. 21) this suit is statute barred thereby robbing the Court of jurisdiction to entertain it.
Resolution of the preliminary objections
As shown earlier, the contention of 1st respondent in his Preliminary Objection is that even though appellant filed this appeal on 14/06/2019, he did not serve the said Notice of Appeal on it until 20/6/2019 so it was denied the opportunity of filing cross-appeal or Respondent?s notice or to even participate in the compilation of the records of appeal. The response of Mr. Oru for response is that compilation and transmission of records of appeal is the function of the Registrar of the trial Court and not of appellant. Regarding 1st respondent?s complaint of his right to cross-appeal being affected by the delayed service of the Notice of Appeal, Mr. Oru submitted
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that appeal and cross-appeal are two different causes of action and so one does not impinge on the other.
I am in agreement with Mr. Oru for appellant on both arms of his response. First, both main appeal and cross-appeal are to all intents and purposes appeals properly so-called and are bound by the same time limits for filing, their difference being only as to nomenclature. The appeal filed first takes the name ?appeal? while the one filed later gets the prefix ?cross? attached to it to differentiate it from the earlier one, so if 1st respondent decided to wait for appellant to file his appeal before lodging its own appeal and has suffered any disadvantage thereby, it has only itself to blame.
As for the duty of compilation of records, it undoubtedly belongs to the Registrar of the lower Court so appellant cannot be punished for any omission in that regard. At any rate, 1st respondent has not complained of insufficiency of the records before the Court, which complaint if any he can remedy by compiling Supplementary Records.
?
The long and short of all this is that there is no substance in 1st respondent?s objection.
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It is hereby dismissed.
Third respondent?s objection is that the foreign materials referenced by the trial judge did not form the basis of his decision in the case and therefore cannot form a ground of appeal so it should be struck out along with issue 1 framed from it. The response of Mr. Oru for appellant is that Ground 1 is competent because it relates to the decision of the lower Court. Much as I appreciate this objection, I think it rather goes to the merits of the complaint of appellant in his ground 1 and not the competence of that ground itself. Fortunately too, 3rd respondent repeated the same arguments in his issue 1. For this reason, I think it is better taken there than dismiss it in limine; after all it is now settled that a ground of appeal may arise from:
1. The of the decision,
2. The procedure under which the claim appealed against was initiated,
3. The procedure under which the decision was rendered,
4. Other extrinsic features such as jurisdiction of the lower Court, and
5. Commission or omission by the lower Court in either refusing to do what it ought to do or doing what it ought not
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to do or vice versa.
See Akpan v. Bob (2010) 17 NWLR (PT 1223) 421 @ 462 (S.C.). The Complaints of appellant about extraneous matters referenced by the lower Court appear in the ? of the decision.? They may also amount concomitantly to commission on its part in doing what it ought not to have done, namely, referring to matters that were not before it. Whether the said reference also affected its decision as to merit overturning its judgment is a different matter which requires proper interrogation when considering the appeal on its merit. On that note, I also reject 3rd respondent?s application to strike out in limine the said Ground 1 and issue 1 of appellant culled from it.
The Substantive Cross-appeal
That takes me to the arguments of parties on the merits of the appeal including the said issue of the trial judge?s reference to extraneous materials, which is issue 1 of appellant. Mr. Oru for appellant in argument on issue 1 referred us to lines 14 to 18 of page 968, page 970 lines 21 to 27 and page 971 lines 1 to 3 of the Records where the trial judge said as follows:
?The plaintiff approached this Hon.
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Court by originating summons dated 17th December, 2018 and filed on the 4th of January, 2019 pursuant to the Federal High Court (Civil Procedure) rules, Section 87 (9) of the Electoral Act (as amended and under the inherent jurisdiction of this Court.?
?The plaintiff?s originating summons is supported by an affidavit of 6 (six paragraphs deposed to by Hon. Sabiu Ismail, litigation secretary at the Law firm of Messrs Legissade Advocates and Consultants with 9 (nine) annexures and a written address in which the questions reproduced above are canvassed for determination. The annexed exhibits are marked as follows Exhibit: E1-Plaintiff?s APC membership card; E2 and E2A. Expression of interest nomination forms respectively; E3- APC primaries result sheet; E4 and E4A- petition to the APC Appeals Committee and endorsement of the plaintiff as consensus candidate; E5-Appeals Committee?s resolution; E6 APC Constitution.?
(vi) No nine annexures were attached to the Appellant?s writ of summons know as Exhibits E1, E2, E2A, E3, E4, E4A, E5 and E6.?
?
Counsel argued that by this reference, which he called the
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?assessment, evaluation and consideration? of appellant?s case, the trial judge completely lost sight of appellant?s case and relied on unrelated and extraneous Court processes in making findings and thereby occasioned a miscarriage of justice against appellant so we should reverse those findings.
In response, Mr. Ishaku Garba for 1st Respondent citing a number of cases including Adeogun v. Fashogbon (2011) ALL FWLR (PT 576) 485 @ 501 @ 502 (S.C.), Baba v. Civil Aviation (1991) 2 NSCC 145 @ 161 and Ibidokun v. Adarole (2001) 12 NWLR (PT 727) 268 @ 313 (C.A.) submitted that the judge like every human being is bound to slip here and there in writing judgment, that provided his slips have not caused any miscarriage of justice, which he argued was the case here given that the Court ultimately got his facts right and it was on the correct and relevant facts on the narrow issue of whether the action was barred by the statute that he determined the case, the complaint of appellant is of no moment and should be discountenanced. The response of Mr. Chukwuemeka for 3rd respondent ran along the same lines. Counsel was also of the view that the
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slip of the lower Court was an honest and harmless one which did not affect its decision striking out the case on grounds of being barred by the Constitution. Counsel cited Akiboye v. Adeko (2001) 12 NWLR (PT 727) 268 @ 313 to submit that a finding of fact is more appropriately employed to describe an affirmation of fact made after considering evidence, which he submits was not the case here. He argued, too, that there can be no valid complaint over review of evidence by a trial Court on which it made no finding of facts, which he insists was the situation here. Counsel cited Iwok v. University of Uyo (2011) 6 NWLR (PT 1243) 211 @ 241 and Olonade v. Sowemimo (2014) NWLR (PT 1428) 473 @ 493 to submit that it is not every error or slip by a Court that would justify reversal, that an error that would justify reversal must be such as is shown to have substantially affected the decision and occasioned miscarriage of justice and not one that has not made any difference to it. He added, too, that appellant in any case acquiesced when his counsel who was in Court during the delivery of judgment did not draw its attention to the slip.
Resolution
I am in
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agreement with the arguments of counsel to 1st and 3rd Respondents. Slips and errors are inevitable in judgments prepared by fallible human beings. That is why every judicial system makes provision for appeals. But it is not every error that results in reversal of judgments on appeal. The Courts, particularly in this country, recognize a difference between innocuous errors, slips and misstatements of the Court on one hand and errors which substantially affect the decision complained of and so can be properly described as having caused miscarriage of justice and require intervention: see Adeogun v. Fashogbon (2011) ALL FWLR (PT 576) 485 @ 501 @ 502 (S.C.); Baba v. Civil Aviation (1991) 2 NSCC 145 @ 161; Ibidokun v. Adarole (2001) 12 NWLR (PT 727) 268 @ 313; Iwok v. University of Uyo (2011) 6 NWLR (PT 1243) 211 @ 241, Olonade v. Sowemimo (2014) NWLR (PT 1428) 473 @ 493. Here the trial judge only determined the case on the narrow issue that it was caught by Section 285(9) of the 1999 Constitution (as amended by the Fourth Alteration Act) having not been filed within 14 days from accrual of appellant?s cause of action, which it said took place on 8th October
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when 1st respondent announced 3rd respondent as its candidate and winner of its 4th October 2018 primary election. Appellant has not complained that the identified accidental slip of the lower Court played any part in that decision. In the absence of any such suggestion and miscarriage of justice, appellant?s complaint seems to me with due respect puerile. In the result, I reject it and resolve this issue against him.
Issues 2 & 3
Appellant argued his issues 2 and 3 together. The gist of his complaint there is that following the wrongful announcement of 3rd respondent on 8th October 2018 by 1st respondent as the winner of its 4th October 2018 election, he (appellant) petitioned 1st respondent?s Appeals Committee, which upheld his petition on 15/10/2018 and declared him the winner whose name should be forwarded to 2nd respondent (INEC) for the general election; that despite that declaration 1st respondent still forwarded the name of 3rd respondent; that it was only when 2nd respondent (INEC) published the names of party candidates for the election on 25/10/2018 and published the name of 3rd respondent as 1st Respondent that he became
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aware of the fact that his name was not submitted so his cause of action and 14 days to commence action as required by Section 285(9) of the 1999 Constitution began to run, and not the 8th of October 2108 as the lower Court held. He therefore urged us to uphold this argument and exercise the general powers of rehearing conferred on this Court by Section 15 of the Court of Appeal Act 2004 to evaluate the evidence on record and enter judgment for him in line with his claim.
All three respondents argued to the contrary, saying that, besides the fact that 3rd respondent actually won the primaries of 4th October 2018, the lower Court was correct in its decision that appellant?s right of action accrued on 8th October 2018 when by his own admission 1st respondent announced 3rd respondent as the winner of its 4/10/2018 primary and its candidate for the general election and not 25/10/2018 when INEC (2nd Respondent) published 3rd respondent?s name. At any event, all of them further submitted, even assuming but without conceding that appellant?s cause of action occurred on 25th October 2018 as he claims, 25/10/2018 to 08/11/2018 when he filed his
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case is not 14 days but 15 days, counting from and including the 25th of October 2018 as settled by the authorities including Okechukwu v. INEC & Ors (2014) 9 S.C. 1 @ 17, (2014) NWLR (PT 1436) 255 @ 284-28 in election related matters like this, so his action was barred by Section 285(9) of the 1999 Constitution even by his own calculation. All three respondents also argued that this is not a proper case for invocation of our powers of re-hearing under Section 15 of the Court of Appeal Act given that a number of witnesses and a large one for that matter testified orally at the hearing, which will undoubtedly call for judging of credibility of witnesses we never saw. They finally urged us to resolve this issue too against appellant.
RESOLUTION
This is how the trial Judge ruled on the preliminary objection in his judgment:
?Now, a look at the plaintiff?s writ of summons particularly the paragraphs reproduced above indicates that the casus (sic) of action arose on the 8th October, 2018, four days after the 4th October, 2018 on which the primary election was conducted. This fact is admitted by the plaintiff/respondent in the counter
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affidavit to the 3rd and 1st defendants? preliminary objections. It is however argued that the plaintiff alleges two set of wrongs, one on the 8th October, 2018 and the other on the 25th October, 2018, and thus was at liberty to elect when to pursue his remedy in Court. I am constrained to agree with Chukwuemeka Esq. for the 3rd defendant/applicant that the cause of action of 25th October, 2018 is not stated in either the writ of summons or statement of claim, and it is trite that the writ of summons and statement of claim are the documents to look at in attempting to decipher cause of action and when it accrued. I therefore must hold that the plaintiff/respondent?s cause of action arose on the 8th October, 2018 when 3rd defendant was declared winner of the election which the plaintiff/respondent is alleging he won. Whatever transpired between the plaintiff/respondent and the Appeals Committee of the 1st defendant as contained in paragraphs 16 to 19 of the statement of claim amounts to an in-house or intra-party affair and cannot be a ground to stop the clock from ticking. As a matter of fact, nothing stops the running of time set by
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Section 285 of the CFRN (as amended) under the 4th Alteration, I so hold.
?In limitation matters, negotiation by parties cannot stop time from running. See the concurring judgment of Adah JCA in Senator Lawal Gumau v. Barr. Ibrahim Zailani & 2 Ors (Unreported) Appeal No. CA/A/150/2019 delivered on the 12th April, 2019 and Eboigbe v. NNPC (1994) LPELR-992 (SC).
?Cause of action arises on the date when a breach of any steps would warrant a person who is adversely affected by the act of another to seek redress in Court. What primarily gave rise for the plaintiff/respondent to sue is the decision or action of the 1st defendant to declare the 3rd defendant/applicant winner of the primary election which was held on the 4th October, 2018.?
?It is obvious on the face of the plaintiff/respondent?s writ of summons that it was filed on the 8th November, 2018, and having resolved inter alia that the cause of action arose on the 8th October, 2018. By the provisions of Section 285 (9) of the 1999 CFRN (as amended), the plaintiff/respondent?s ought to have instituted this suit within 14 days from the 8th October, 2018 and having
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instituted on the 8th November 2018, this suit was filed well beyond the stipulated time frame and I must hold that it is statute-barred.?
This decision seems to me faultless both as to the facts and the law. In the first place, appellant contradicted himself when he blamed the trial Judge for holding that his cause of action arose on 8/10/2018 when 1st respondent announced 3rd respondent as its candidate for an election he won. For appellant also admitted that fact (partly at least) at the lower Court in his answer to the preliminary objection when he argued in paragraphs 5.3 and 5.7 of his address there (as shown at pages 260 and 261 of the records of appeal) that:
?It is submitted that the plaintiff?s grouse is not particularly about event of 4th October 2018 but also about the activities, follow up event and decision of the 1st defendant after the election was concluded on 4/10/2018 and subsequent unlawful announcement of the 3rd defendant as the winner of the election four days after the election which gave rise to his petition to his petition to the appeal panel, and the decision of the first defendant to ignore the decision
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and findings of the appeal panel declaring winner of the election and candidate of the party.
?The first wrong was when after the election was concluded on 4/10/2018 and four days after i.e. 8/10/2018 the announcement was made declaring the 3rd defendant who came third in the valid election as the winner of the primary election. Even if the plaintiff were to approach the Court for redress on that occasion, his right of action cannot be said to have accrued until on or about the 8/10/2018 when the result was purportedly announced, as the plaintiff?s right of action could not be said to have accrued against an election which has not been announced.
?It is elementary and common knowledge that time does not begin to run against a petitioner in an election petition until after the day of the announcement of the result of the election.
?The second wrong and being the final one was the publication of the name of the 3rd defendant as the candidate of the 1st defendant by the 2nd defendant on 25/10/2018. This was the date it became apparent to him that the 1st defendant has again finally shortchanged him despite the decision of
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its lawfully set up National Appeal Committee which declared him winner of the election.? (Italics mine)
Having so admitted, it no longer lies in appellant?s mouth to argue here that that Court was wrong in using that same 8/10/2018 date to compute the accrual of his cause of action or that his cause of action only accrued and ran from 25/10/2018 when INEC published 3rd respondent?s name as 1st respondent?s candidate. An appeal simply continues the case before lower Court so parties are required to keep faith with their case as pleaded and contested there: SeeAjide v. kelani (1985) 3 NWLR (PT 12) 248 @ 269 (S.C.). In any event, even assuming that appellant?s cause of action only occurred on 25/10/2019 – which cannot even be correct as his complaint even on that score was the wrong forwarding of 3rd respondent?s to 2nd respondent by 1st respondent and not the date of publication per se which usually postdates submission of candidates list (see Bello v. Yusuf & Ors (2019) LPELR-47918(SC); Muhammed Sani Musa v. David Umar & Ors (unreported judgment of the Supreme Court of 14 /6/2019 in Suit No SC.405/2019 – the
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08/11/2018 on which he filed his action is the 15th day from the 25/10/2018 and so outside the 14- days? limitation date set by Section 285(9) of the 1999 Constitution that:
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.
In computing time provisions of statutes relating to elections the date of the happening of the event is taken into account (see Okechukwu v. INEC & Ors (2014) 9 S.C. 1 @ 17, (2014) NWLR (PT 1436) 255 @ 284-288), just as appellant in his submissions at the lower Court and here also correctly included the 8/10/2018 and 25/10/2018 days in computing the accrual of his cause or causes of action. I note, too, that appellant did not even respond to this argument of respondents, which means he concedes to that argument: see Okongwu v. NNPC (1989) 4 NWLR (PT 115) 296; Nwankwo v. Yar? Adua (2010) 3 SCNJ (PT 1) 244 @ 265.
For all of the foregoing reasons, I also resolve appellant?s two final issues against him.
?
In effect, the appeal fails on
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all its three issues and so ought to be and is here dismissed.
CROSS-APPEAL
From his three grounds of appeal, cross-appellant distilled three questions for determination as follows:
1. Whether the lower Court was right to have relied on Order 46 Rule 6 of the Federal High Court Rules 2009 to hold that the time to deliver judgment in writing in this suit had not expired on the 3rd of June 2019 having regard to the provision and spirit of Section 285(10) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
2. Whether the lower Court was right to have held that non-joinder of other aspirants who participated in the primary election of 4th October 2018 and who were necessary parties to the action would not defeat the action.
3. Whether the lower Court was right to have held that this action is within the narrow compass of the provision of Section 87(9) of the Electoral Act 2010 to give the Court jurisdiction to entertain it.
On issue 1, cross-appellant relying on the provisions of Section 285(10) of the Constitution and a number of cases including Ugba v. Suswam (2014) 14 NWLR (PT 1427) 264 @ 312 (S.C);
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P.D.P v. C.P.C. (2011) 17 NWLR (PT 1277) 485 @ 507 (S.C); Oke v. Mimiko (No 1) (2014) 1 NWLR (PT 1338) 225 @ 263-264 (S.C) argued that the trial Court erred when after observing that by the 3rd June 2019 date of judgment the case had exceeded the 180-days limit set by Section 285(10) of the Constitution for delivery of judgment it still rejected his argument and rather relied on Order 48 of its Rules to hold that holidays and Sundays between the filing of the case and the day of judgment, which made up 28 days, must be discountenanced so the case was still alive. He submitted that the Rules of the Federal High Court were inapplicable so holidays and Sundays cannot be discountenanced in computation of the 180-days? time limit, especially in a pre-election matter like this one.
On issue 2, counsel relying on the cases of PDP v. Ezeonwuka (2018) 3 NWLR (PT 1606) 187 @ 248-249 (S.C); Ikechukwu v. Nwoye (2015) 3 NWLR (PT 1446) 367 @ 400 (S.C) and Okwu v. Umeh (2016) 4 NWLR (PT 1501) 120 @ 148 (S.C) argued that appellant?s co-contestants of 1st respondent?s primary election were necessary parties and his failure to join them to his action affected the
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competence of the Court to entertain it.
On issue 3, he again cited PDP v. Ezeonwuka (2018) 3 NWLR (PT 1606) 187 @ 248-249 and Oduah v. Okadigbo (2019) 3 NWLR (PT 1660) 433 to argue that appellant failed to bring his action within the narrow confines of Section 87(9) of the Electoral Act 2010. For this, counsel pointed to the fact that appellant averred that the election was peaceful and transparent, which, according to counsel, brings it within the facts of Oduah v. Okadigbo and ought to have resulted in striking it out.
Cross-respondent first raised a preliminary objection to the competence of the notice of cross-appeal and supported it with an affidavit to which he also attached cross-appellant?s payment receipt (otherwise called Remita Retrieval Reference, RRR) No. 2803-0738-1727 for the filing of his cross-appeal. That document (Exhibit A) downloaded from the website of the Federal High Court, bears the name of cross-respondent?s counsel, Chukwuemeka Joseph Esq.
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Also attached to it is the Notice of Cross-Appeal dated 14/06/2019 signed by the same Chukwuemeka Joseph Esq., which Notice bears the same RRR Number 2803-0738-1727 on
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Exhibit A.
Mr Oru for cross-respondent drew our attention to the fact that the said Remita Retrieval Reference (RRR), 2803-0738-1727 shows that the Notice of Cross-appeal was actually filed on 14/06/2019 and not 17/6/2019 as suggested by the endorsement at the foot of its last page; which endorsement itself, he further submitted, even shows clearly that it was altered from its original 17/6/2019 filing date to reflect 14/6/2019 so as to make it appear that it complied with Section 285(10) of the Constitution requiring that the appeal be filed within 14 days of the judgment of the lower Court. Counsel urged us to hold that filing fees for the cross-appeal were only paid for the cross-appeal on 17/6/2019 as reflected on the foot of Exhibit A (RRR) while the filing itself was done on 14/6/2019 when no fees were paid and same rendered the cross-appeal incompetent and left the Court without jurisdiction to entertain it. Payment of filing fees for processes, he argued, is condition precedent to adjudication: for which he cited Onwugbufor v. Okoye (1996) 3 NWLR (PT 424) 252 (S.C.), Abia Transport Corporation Ltd v. Quorum Consortium Ltd (2009) LPELR-33 (SC)
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26-27 and Lion Nig. Bank Plc v. Amaikom (2008) ALL FWLR (PT 417) 85 @ 248-114.
Coming to the merits of the cross-appeal, Mr. Oru for cross-respondent supported the lower Court?s decision that Order 46 Rule 6 of its Rules enjoining it to discountenance Sundays and Public Holidays in computation of time applied so the suit was alive and within time as at 3/6/2019. Citing Nafiu Rabiu v. Kano State (1980) 9-11 SC 130 and Adewumi v. Ekiti State (2002) 2 NWLR (PT 751) 474 @ 522, Mr. Oru urged us to give Section 285(10) of the 1999 Constitution and its 180-days? limit liberal interpretation. Counsel further urged us to take note of the fact that even the transfer of the case from Abuja, where it was originally filed, to Bauchi took 40 days, all for no fault of appellant. There were also Christmas and Easter Holidays in between, counsel further pointed out.
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On issue 2, counsel argued that the principle is that only necessary parties, and not persons against whom no claim has been made, can be joined to an action. He said cross-appellant has not shown that the persons who were not joined are necessary parties and or that the issues in the case
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would not be effectively and effectually determined without them. He pointed out that appellant/cross-respondent made no claim against his other co-contestants, that his case only challenges the substitution of his name with the name of cross-appellant and the subsequent publication of 3rd respondent?s name as 1st respondent?s candidate for the general election. In those circumstances, counsel submitted, appellant was right in not joining his other co-contestants as his case could be judiciously decided in their absence.
On issue 3 and cross-appellant?s contention that appellant?s case was not covered by Section 87(9) of the Electoral Act, Mr. Oru re-adopted the facts of appellant?s case highlighted in issue 2 above and submitted that his case came within the said provision of the Electoral Act, appellant having shown that he was an aspirant in the primary election of 1st respondent and the case arose from non-compliance with the Electoral Act and his 1st respondent?s guidelines and Constitution. Counsel argued that the cases of PDP v. Ezeonwuka (2018) 3 NWLR (PT 1606) 187 @ 248-249 and Oduah v. Okadigbo (2019) 3 NWLR
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(PT 1660) 433 were distinguishable and irrelevant given that unlike those cases there is in this case the issues of announcement of cross-appellant by the party as its candidate and wrongful substitution of his name with that of 1st cross-appellant. The applicable cases, he submitted, are Gwede v. INEC (2015) ALL FWLR (PT 767) 615, Jev v. Iyortyom (2016) ALL FWLR (PT 837) 760; A.P.C. V. Karfi (2018) ALL FWLR (PT 942) 328 and Ugwuegede v. Asadu (2018) 2 MJSC (PT 1) 42.
Replying first to the preliminary objection to the competence of the cross-appeal, Mr. Chukwuemeka submitted that: (1) the Supplementary Record states on its face that the Notice of Cross-Appeal was actually filed on 14/6/2019; (2) that the proper way to challenge records of appeal is to file an affidavit and not by mere challenge as he submitted appellant has done in this case; (3) that in any case, non-payment of filing fees is a mere irregularity which does not affect the jurisdiction of Court, the proper remedy in such case being for the Court to order payment of the said filing fees or shortfall if any, for which he citedAkpaji v. Udemba (2009) ALL FWLR (PT 471) 811 @ 823. In this case,
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he continued, the appropriate filing fees having been paid on 17/06/2019, being the next working day, they were properly paid. Learned counsel also argued that appellant/cross-respondent has not proved beyond reasonable doubt his allegation of fraud concerning the notice of cross-appeal. Counsel placed further reliance on cross-appellant?s Counter-Affidavit to the Preliminary Objection which, he submitted, was detailed enough and explained away what happened at the Registry of the Lower Court concerning the filing of the cross-appeal. He also argued that the provisions of Section 285(11) of the 1999 Constitution only apply to an appeal and not a cross?appeal. He said even if it applied to cross-appeal, the cross-appeal was competently filed because the 14th day from the decision appealed is 16th of June 2019, which is a Sunday, on which day the Registry of the Federal High Court does not open for business so it was properly filed on the next day, Monday 17/6/2019.
Resolution of the Preliminary Objection
We must first attend to the preliminary objection of the appellant/cross-respondent, for it is only if the cross-appeal survives the
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objection that it can be considered on its merits. And here I must say, first, that it appears to me that in so far as the Supplementary Record before this Court also contain the impugned Notice of Cross-Appeal, the affidavit in support of cross-respondent?s Preliminary objection attacking that same cross-appeal suffices as a proper challenge of even the Supplementary record suggesting that the cross-appeal contained in it was filed on 14/06/2019. At any rate, the fact that filing fees for the cross-appeal were only paid on 17/06/2019 as shown in Exhibit A attached to the affidavit in support of the Preliminary objection was also admitted by cross?appellant in his reply to the preliminary objection when he submitted at paragraph 2.08 of his brief that:
In the instant case we submit that the filing fees have been since paid on the 17th June 2019, the next working day, and have not been declared inadequate or insufficient.?
What is admitted or conceded needs no further proof.
I am also not with Mr. Chukwuemeka on the difference he sought to make in times for filing appeal and cross-appeal and the non-applicability of
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Section 285(11) of the Constitution to cross-appeals. As I said earlier in the main appeal, appeal and cross-appeal mean exactly the same thing: the prefix ?cross? attached to a cross-appeal only existing to differentiate it from the notice of appeal filed earlier. The authorities counsel cited in support of his argument are also of no relevance. Section 285(11) of the Constitution, unlike Sections 138 and 149 respectively of the 2002 and 2006 Electoral Acts considered Buhari v. Obasanjo (2005) 13 NWLR (PT 941) 1, Adegbuyi v. Mustapha (2010) ALL FWLR (PT 524) 185-186 and Aregbesola v. Oyinlola (2011) 9 NWLR (PT 1253) 453 cited by counsel, does not differentiate between a successful petitioner and respondent but simply says:
An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.
I hold that cross-appeal is an appeal within the meaning and intent of this provision and has to be filed within 14 days. Was it so filed? My answer is in the positive.
In the first place, fourteen days from the 3rd of June 2019 when the lower Court delivered its judgment terminates on 16th June
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2019, which day happens to be a Sunday, a No Working day. Section 318(4) of the Constitution states that: ?The Interpretation Act shall apply for the purposes of interpreting the provisions of this Constitution.? Section 15 (3) of the Interpretation Act goes on to say that:
Where by an enactment any act is authorized or required to be done on a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.
Section 15(5) of the Interpretation Act states that:
In this section ?holiday? means a day which is a Sunday or a public holiday.
That means payment of the filings fees for the cross-appeal which was undisputedly done on Monday 17/06/2019 by cross-appellant was properly done within 14 days of the delivery of the judgment of 03/06/2019 as required by Section 285(11) of the 1999 Constitution and so validated the Notice of Cross-Appeal, which by even appellant/cross-appellant?s admission was handed over to the Registry of the Federal High Court and filed on 14/6/2019. That consequentially neutralizes the arguments of
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appellant/cross-respondent on filing fees not being paid and so this Court denied of jurisdiction to entertain the cross-appeal. In any event, it is settled that a document is deemed to have been properly filed when it is deposited in a Court Office (as was done in this case) with the proper officer assigned with that responsibility: See Mohammed v. Musawa (1985) 3 NWLR (PT 11) 89 @ 95 paragraph D-F which cited with approval by the apex Court in Akpaji v. Udemba (2009) ALL FWLR (PT 471) 811 @ 823. That position of the law ought to even apply with more force given the modern system of e-filing of processes prevalent in the Federal Courts of this country which, as shown in the counter affidavit of cross-appellant and we must also take judicial notice, requires litigants to undergo a rather complicated process to pay filing fees even after depositing their processes with the Registry of the Court. For all these reasons, I hereby dismiss the preliminary objection of the appellant/cross-respondent. I hold that the cross- appeal is competent and was validly filed.
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The substantive cross-appeal
That takes me straight to issue 1 of the said cross-appeal
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where the trial judge imported Order 46 Rule 6 of the Rules of the Federal High Court to hold that holidays and Sundays have to be subtracted from the 208 days cross-respondent?s case lasted in that Court so he had jurisdiction to deliver judgment notwithstanding the provisions of Section 285 (10) of the 1999 Constitution of this country stating that ?A Court in every pre-election matter shall deliver its judgment within 180 days from the date of filing of the suit.? I have no doubt that His Lordship was, with due respect, wrong. The only relevant enactment for the purpose of interpreting the Constitution, as already shown above, is the Interpretation Act (see: Section 318(4) of the Constitution), and the Interpretation Act does not make any such exception. Section 15(4) of the Interpretation Act stating that: ?Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period? clearly does not apply to Section 285 (11) of the Constitution providing for 180 days for disposal of pre-election matters. In
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any case Ugba v. Suswam (2014) 14 NWLR (PT 1427) 264 @ 312 (S.C.) has settled beyond doubt that the 180 days time limit of Section 285(10) is immutable ?as the Rock of Gibralter or Mount Zion which cannot be moved, that time cannot be elongated or enlarged in any way and anything not done within the 180 lapses and the Court is thereby robbed of jurisdiction to entertain the matter.? See also PDP v. C.P.C. (2011) 17 NWLR (PT 1277) 485 @ 507 (S.C) among several others. The trial Court was thus without jurisdiction when by its own admission the case lasted for 208 days from its filing to the 3rd day of June 2019 when it gave its judgment. Having long lost jurisdiction, not only was its judgment a nullity, even all the proceedings it conducted after the 180th day of the filing of the case are null and void and I so declare.
In effect, the cross-appeal has merit and is allowed and the judgment of the lower Court together with all its proceedings after the 180th day from its filing of 8/11/2018 are nullified and set aside.
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There shall be costs in favour of all the Respondents for the main appeal which I assess at N50,000 in favour of each
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Respondent, and another N100, 000.00 in favour of only the cross?appellant in respect of the cross-appeal, all against the appellant/cross-respondent.
ADZIRA GANA MSHELIA, J.C.A.: I had a preview of the lead Judgment of my learned brother, Ugo, J.C.A just delivered. I agree with the reasoning and conclusion arrived thereat in respect of the main appeal that Appellant’s action is statute barred. I also endorse the conclusion arrived thereat, that the Cross-Appeal should be allowed. I abide by the consequential order made that the Judgment delivered by the lower Court on the 3rd day of June 2019 and all the proceedings after the 180th day from its filing of 08/11/2018 is nullified and set aside for want of jurisdiction. I also endorse costs awarded as contained in the lead Judgment.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my brother BOLOUKUROMO MOSES UGO, JCA and I agree with the views expressed and the conclusion arrived thereat. I adopt same as mine.
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I subscribe to all the consequential orders made in the lead
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judgment inclusive of the one as to costs.
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Appearances:
Marcel Oru, Esq., with him Lawrence John, Esq.For Appellant(s)
Ishaku Garba Esq for 1st Respondent.
I.J. Mbasavdue, Esq. with him, T.C. Adaga, Esq and D.M. Safiyanu, Esq. for 2nd Respondent.
Joseph E. Chukwuemeka, Esq. with him Taha Uba, Esq. for 3rd Respondent/Cross-Appellant.For Respondent(s)
Appearances
Marcel Oru, Esq., with him Lawrence John, Esq.For Appellant
AND
Ishaku Garba Esq for 1st Respondent.
I.J. Mbasavdue, Esq. with him, T.C. Adaga, Esq and D.M. Safiyanu, Esq. for 2nd Respondent.
Joseph E. Chukwuemeka, Esq. with him Taha Uba, Esq. for 3rd Respondent/Cross-Appellant.For Respondent
