OLUWASHOLA ABDULWAHEED JIMMY IDIAGBON v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13388(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/IL/53/2019
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
OLUWASHOLA ABDULWAHEED JIMMY IDIAGBON Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS (APC)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. ALHAJI ABDULGANIY SAKA COOK OLODODO Respondent(s)
RATIO
DEFINITION OF A CAUSE OF ACTION
I think it is apt at this juncture to define what is cause of action, and when it accrues in civil litigation. In Nduka v. Ogbonna (2011) 1 NWLR (Pt.1227) P. 153 @ 168-169, the Court defined the term ?cause of action action” to be any material facts which a claimant has the burden or the onus to prove in order to obtain judgment of the Court in his favour. Put in another way, a cause of action is the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements:
a) The wrongful act of the defendant which gives the plaintiff his cause or complaint; and
b) The consequent damage
In Oke v. Oke (2006) 17 NWLR (Pt.1008) P.224 @ 241, it has been settled that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs, which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in protection of a legal right that has been breached. The duration of a right to cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapses after the date the statute of limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party see (Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890). PER BDLIYA, J.C.A.
FACTOR TO DETERMINE WHETHER A SUIT IS STATUTE-BARRED
In determining whether a suit is statute barred or not, the time the cause of action arose or accrued and the time the suit has been filed or instituted are to be ascertained by looking at the pleadings contained in the statement of claim or the affidavit in support of the suit as the case may be. In Chief Ikine v. Chief Edjerode (2002) FWLR (Pt. 92) P. 1775 @ 1795, the Supreme Court enunciated that in dealing with limitation of action by statutory provisions, the precise date when the cause of action arose or accrued must be determined, the time from which the bar to an action begins to run is measured by years, months and days, that is, from the date the cause of action arose. See CAC v. Governor Council ITF (2015) 1 NWLR (Pt. 39) P. 114 @ 131 and JALLCO Ltd v. Owoniboys Tech Service Ltd (1995) 4 NWLR (Pt. 391) P. 534. The test for determining when a cause of action begins to run is when there exist, in favour of the person who can sue, all the facts that have happened, which are required to prove that the plaintiff is entitled to judgment. That notwithstanding, a cause of action has to be looked at from the peculiar circumstances of any given case. Thus, when a cause of action can be said to have arisen varies from one case to another, and it is always the totality of the facts of the case, which give rise to a right of action, thus entitling a person to a judicial relief.
Furthermore, in Amusan v. Obideyi(2005) 14 NWLR (Pt. 945) P. 322 @ 328, the Apex Court held thus:
?in calculating the period of limitation applicable in a case one will look at the writ and statement of claim, which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued. If the writ was issued beyond the time allowed by the applicable limitation law which is edict No 11 of 1989, then the action can be said to be statute-barred.”
This Court, Per Bulkachuwa, JCA (as then she was) in the case of Yare v. NSIWC (2006) 2 NWLR (Pt. 965) P. 546 @ 553, espoused thus:
?In determining when a cause of action is said to have accrued the Courts are enjoined to consider the plaintiff?s statement of claim or the factual situation on which the plaintiff relies to support his claim. See Ogbimi v. Ololo (supra); Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501; Ogbah v. BDU (Jos Branch) (2001) 3 NWLR (Pt.701) 579. PER BDLIYA, J.C.A.
THE GUIDING PRINCIPLES OF INTERPRETATION OF CONSTITUTIONAL AND STATUTORY PROVISIONS
The guiding principles of the interpretation of Constitutional and statutory provisions have been espoused brilliantly by Oseji JCA in the case of Amiwero v, A.-G Federation (2015) All FWLR (Pt. 802) P. 1742 @ 1769-1770, wherein the learned Justice enunciated thus:
?It is trite and well established principle of construction of statute that where the provision of a statute are clear and unambiguous, effect should be given to them as such, unless it would be absurd to do so, having regard to the nature and circumstance of the case. See Bronik Motors Ltd v Wema Ltd (1983) 1 SCNLR 296; Awolowo v Shagari (1979 6-9 SC 51; Federal Republic of Nigeria v. Osahon and Ors. (2006) All FWLR (pt. 312) 1975, (2006) 5 NWLR (pt. 973) 361 in Nwakire v. Commissioner of Police (1992) NWLR (Pt. 241) 289, 1992) 6 SCNJ 1, the Supreme Court per Nnaemeka-Agu JSC, posited that:
?After all, the primary rule of construction is the literal construction, which requires that we give the words used in the statute and only those words, their ordinary and natural meanings, omitting no words and adding none, in the construction we arrive at, save in accordance with the recognized rules of construction. See also Egbe v Yusuf (1992) 6 NWLR (pt. 245) 1; Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (295) 335, (1992) 11-12 SCNJ 92; where an interpretation of statute will result in defeating the essence of the statute, the Court will not lend its weight to such interpretation. The language of the statute must not be stretched to defeat the aim of the statute. See Ansaldo (Nig) Ltd v National Provident Fund Management Board(1991) 2 NWLR (pt. 174) 392, (1991) 3 SCNJ 22.?
Muktar, CJN, in the case of A.G Federation v. Lagos State (2013) 16 NWLR (Pt. 1380) P. 249 @ 317, re-emphasized the need to interpret the provisions of statutes with a view to achieve the intention of the legislature in providing for the statutory provisions, thus:
?it is a settled principle of interpretation that provisions in statutes must be given their simple and direct meaning, which construes and give the statute it?s legal meaning. In the process of doing so, the intention of the legislature must be explored and taken into consideration, but will not be to the extent of bringing into the provision a different complexion from what was intended by the legislature. In this wise, the Court should confine itself to the plain and unambiguous meaning of the words used.”PER BDLIYA, J.C.A.
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court of justice (here-after referred to as the lower Court) delivered on the 4th of April, 2019, in suit No. Kws/378/2019, coram, Hon. Justice A.S Oyinloye. The appellant (as the claimant at the lower Court) and the 3rd respondent (as the 3rd defendant at the lower Court) are all members of the 1st respondent (as the 1st defendant) at the lower Court). The appellant and the 3rd respondent participated in a primary election conducted by the 1st respondent under the supervision of the 2nd respondent on the 5th of October, 2018, for Ilorin South/East Federal Constituency of the Kwara state in the National Assembly. The appellant alleged that he scored the highest votes and was declared the winner of the said election, whereas the 3rd respondent came 2nd with 6,568 votes. The appellant alleged that his name was forwarded to the National Headquarters of the 1st respondent. That on or about the 15th of October, 2018, he got information that there was move to substitute the name of the 3rd respondent for his name as the
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candidate to contest the election on the platform of the 1st respondent. He petitioned the head office of the 1st respondent who promised to look into the matter. That the name of the 3rd respondent was eventually forwarded to the 2nd respondent as the candidate representing the 1st respondent at the General elections to elect a member for the said Federal Constituency of Kwara State. That the name of the 3rd respondent was contained in the list published on the 25th of October, 2018 as the candidate for the 1st respondent for the General Election held on the 23rd of February, 2019. The appellant was dismayed and aggrieved, hence the institution of suit No Kws/378/2018, before the lower Court on the 29th of October, 2018. After the filing of all relevant documents and adoption of written addresses by learned counsel, the learned judge, in a judgment delivered on the 4th of April, 2019, held that the suit filed by the appellant was statute barred and same was struck out accordingly.
Peeved and piqued by the decision of the lower Court, he then filed Notice of Appeal to this Court, challenging the said decision on three (3) grounds of appeal. The
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appellant?s brief of argument was filed on the 23rd of April, 2019 containing a sole issue for determination in the appeal on page 7 thereof. The 1st and 2nd respondents filed brief of argument on the 29th of April, 2019, wherein on page 4 thereof a lone issue for determination was culled from the grounds of appeal. The 2nd respondent did not file brief of argument. The appellant filed reply brief in response to the 1st and 2nd respondents? brief of argument. In the hearing and determination of an appeal, the appellate Court can either adopt the issues contained in the parties briefs of argument or reframe the issues or even totality ignore same, and formulate entirely different issues so long as same are predicated on the grounds in the Notice of appeal. In PSHSMB v Goshwe (2013) 2 NWLR (Pt. 1338) P. 383 @ 399, the Apex Court enunciated that an appellate Court can restructure or formulate issues for determination to meet the justice of the case. In other words, the purpose is to narrow the issue or issues in controversy for accuracy, clarity and brevity. See Okoro v. State (1988) 5 NWLR (pt. 94) 255; Latunde v. Lajinfin (1989) 3 NWLR (pt.108) 177;
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Awojugbagbe Light Industries Ltd. V. Chinukwe (1995) 5 NWLR (pt. 330) 379; Ogunbiyi v. Ishola (1996) 6 NWLR (pt. 452) 12.
Therefore, for clarity and precision the issues contained in the appellant?s and the respondents? briefs of argument are hereunder amalgamated and compressed a lone issue thus:
WHETHER, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES DEPOSED TO IN THE AFFIDAVIT, COUNTER-AFFIDAVIT; FURTHER AFFIDAVIT AND FURTHER COUNTER AFFIDAVIT OF THE PARTIES AND A CRITICAL APPRAISAL OF SAME, THE LEARNED JUDGE OF THE LOWER COURT WAS RIGHT IN LAW, DECLARING SUIT NO:KWS/378/2018 STATUTE BARRED AND STRUCK OUT SAME.
RESOLUTION OF SOLE ISSUE FOR DETERMINATION IN THE APPEAL:
L.O. Fagbemi Esq., of learned counsel, who settled the appellant?s brief of argument, did contend that a critical appraisal of the originating summons and affidavit in support thereof, being processes upon which the suit filed was predicated, the appellant cannot be said to have breached or contravened the provisions of Section 285 (9) of the 1999 Constitution (as amended). He submitted that it is not contestable that Section 285 (9) of the said Constitution
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places a bar or limitation to the exercise of right of action by a litigant in respect of pre-election matters. However, learned counsel pointed out that, the time frame stipulated in the said section of the Constitution, (1999) is to be calculated from the date of the occurrence of the event, decision or action complained of in the suit. It is his further submission that the Writ of Summons and Statement of Claim are to be considered for the purpose of calculating the limitation period as enunciated in the cases of Williams v. Williams (2008) 10 NWLR (pt.1095) p. 364 @ 383; Amusan v. Obideyi (2005) 14 NWLR (Pt. 945) P. 322 @ 328; Yare v. NSIWC (2006) 2 NWLR (Pt. 965) @ 553 and Sifax Nigeria Ltd & Ors v. Misfo Nigeria Ltd & Ors (2015) LPELR-24655.
Learned counsel adumbrated that, in ascertaining the limitation period, the Court can not consider the defense of the defendant or the reply filled by the claimant or further affidavit in response to the counter-affidavit because they are not originating processes. This principle of law has been propounded in the case of Oduah v. Senator Okadigb & Ors (2019) 3 NWLR (pt. 1660) P. 433 @ 460-461. That
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reading the originating summons together with the affidavit in support, it is evidently clear that the cause of action or the event or action of the 1st respondent, which is the basis of filing the suit by the appellant on the 29th day of October, 2018, accrued or occurred on the 16th of October, 2018, when the appellant became aware of the plan to substitute him with the 3rd respondent as the candidate of the 1st respondent who was elected at the Primary election held on the 5th October, 2018. That the foregoing adumbration cannot be correct in view of Exhibits B-B22 annexed to the Originating Summons, which clearly showed that it was the appellant that was elected, having scored the highest vote at the said primary election.
?
Learned counsel asserted that, on the 16th of October, 2018, the appellant met Mr. Bashir Bolarinwa, Chairman of the Kwara State Chapter of the 1st respondent at the National Headquarters, whereat he came to know of the plan to substitute his name with the 3rd respondent. That on the 16/10/2018, as deposed to in the affidavit in support of the originating summons, the appellant caused Exh. ?D? to be written to the
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Chairman stating vividly how he emerged as the candidate elected at the primary election, not the 3rd respondent. That the cause of action arose when the 3rd respondent?s name was forwarded to the 2nd respondent by the 1st respondent and same was published on the 25-10-18. The principles of law enunciated in the case of Adimora v. Ajufo (1988) 1 NSCC 1005 @ 1018-1019 lines 40-22 wherein it was expatiated when a cause of action arises, matures and becomes complete, was cited and relied on to reinforce the submission supra.
Learned counsel contended that notwithstanding the principles of law in the cases cited supra, and the settled principle of law that it is only the Originating Summon and the affidavit in support that are to be considered in determining when a cause of action arose or occurred, the lower Court took into consideration the counter-affidavits of the respondent in arriving at a perverse decision, that the 15th of October, 2018, was the date the cause of action arose or occurred in the judgment delivered on the 4th of April, 2019. It is learned counsel?s further submission that by considering the counter-affidavits of the
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respondents, extraneous matters where relied on in the decision of the lower Court, which is perverse and liable to be set aside as espoused in the cases of Atolagbe v. Shorun (1985) NWLR (Pt.2) P. 30; Osuji v Ekeocha (2009) 16 NWLR (Pt. 1166) P.81; Irolo & Ors v. Uka & Ors (2002) 14 NWLR (pt. 786) P. 195 and FRN v. Barminas (2017) 15 NWLR (pt. 1588) P. 172. That in view of the foregoing adumbration, the decision arrived at by the lower Court is perverse and urged this Court to hold so and in consequence, allow the appeal and set aside the judgment of the lower Court.
For the 1st and 3rd respondents, A.G Bello Esq., of learned counsel, did submit that the learned judge of the lower Court rightly struck out the suit filed by the appellant for being statute barred by virtue of Section 285(9) of the Constitution 1999 (as amended). That the appellant did not state in the affidavit and the further affidavit when the alleged substitution of his name for the 3rd respondent as the candidate of the 1st respondent for the election of a member of the National Assembly for the Ilorin South/Ilorin East Federal Constituency. He went on to submit that the
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appellant did not file the suit before the lower Court within the 14 days prescribed by the law.
Learned counsel further submitted that the assertion of the appellant that he only knew of the substitution of his name by the 1st respondent on the 16-10-2018 contrary to the 15-10-2018 as stated by the respondents. Counsel adumbrated that ignorance of the date of the substitution of his name for the 3rd respondent is of no moment in the determination of the 14 days period under Section 285(9) of the 1999 Constitution (as amended) as enunciated in the cases ofAkibu v. Azeez (2003) All FWLR (Pt. 149) P. 1490 @ 1516 and Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1001) P. 76 @ 142.
As to when a cause of action accrues or occurs, learned counsel cited and relied on the principles of law espoused by the Courts in the cases of CBN v. Amao (2007) All FWLR (Pt. 351) P. 1790 @ 1526; Onadeko v. Union Bank Plc (2006) All FWLR (Pt. 301) P. 1872 and Society Bic S.A v. C.J Ltd (2014) All FWLR (Pt. 739) P. 1212 @ 1233, wherein the occurrence of events leading to the accrual of a cause of action has been adumbrated.
?
In conclusion, learned counsel submitted that the
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lower Court was right in its decision that the suit filed by the appellant was statute barred, having been initiated after 14 days, after the accrual of the cause of action. It has been urged that the sole issue be resolved against the appellant.
In responding to the arguments canvassed by the 1st and 3rd respondents, learned counsel to the appellant submitted that a thorough examination of the affidavit, the counter-affidavits, the further affidavits and the further counter-affidavit, would reveal that the cause of action started to accrue on the 15th of October, 2018, but materialized or became concluded on the 16th of October, 2018, when the 1st respondent, finally submitted the name of the 3rd respondent as the candidate of the 1st respondent for the election to the National Assembly (specifically, the House of Representative, Ilorin South/Ilorin East Federal Constituency). It is counsel?s contention that Exhibit ?D? attached to paragraph 14 of the affidavit in support of the appellant?s suit, is an indication that the cause of action started to accrue on the 15-10-2018, and became conclusive on the 16-10-2018 when the Chairman
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of the 1st respondent, Kwara State chapter, finally submitted the name of the 3rd respondent as substitute for the appellant. In view of the foregoing adumbration, learned counsel did urge that the sole issue for determination in the appeal be resolved in favour of the appellant.
In order to ascertain or determine whether suit No:Kws/378/2018 is statute-barred or not, I think it is apt at this juncture to define what is cause of action, and when it accrues in civil litigation. In Nduka v. Ogbonna (2011) 1 NWLR (Pt.1227) P. 153 @ 168-169, the Court defined the term ?cause of action action” to be any material facts which a claimant has the burden or the onus to prove in order to obtain judgment of the Court in his favour. Put in another way, a cause of action is the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements:
a) The wrongful act of the defendant which gives the plaintiff his cause or complaint; and
b) The consequent damage
In Oke v. Oke (2006) 17 NWLR (Pt.1008) P.224 @ 241, it has been settled
11
that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs, which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in protection of a legal right that has been breached. The duration of a right to cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapses after the date the statute of limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party see (Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890).
In determining whether a suit is statute barred or not, the time the cause of action arose or accrued and the time the suit has been filed or instituted are to be ascertained by looking at the pleadings contained in the statement of claim or the affidavit in support of the suit as the case may be. In Chief Ikine v. Chief Edjerode (2002) FWLR (Pt. 92) P. 1775 @ 1795, the Supreme Court enunciated that in dealing with limitation of action by statutory provisions, the precise date when the cause of action arose or accrued must be
12
determined, the time from which the bar to an action begins to run is measured by years, months and days, that is, from the date the cause of action arose. See CAC v. Governor Council ITF (2015) 1 NWLR (Pt. 39) P. 114 @ 131 and JALLCO Ltd v. Owoniboys Tech Service Ltd (1995) 4 NWLR (Pt. 391) P. 534. The test for determining when a cause of action begins to run is when there exist, in favour of the person who can sue, all the facts that have happened, which are required to prove that the plaintiff is entitled to judgment. That notwithstanding, a cause of action has to be looked at from the peculiar circumstances of any given case. Thus, when a cause of action can be said to have arisen varies from one case to another, and it is always the totality of the facts of the case, which give rise to a right of action, thus entitling a person to a judicial relief.
Furthermore, in Amusan v. Obideyi(2005) 14 NWLR (Pt. 945) P. 322 @ 328, the Apex Court held thus:
?in calculating the period of limitation applicable in a case one will look at the writ and statement of claim, which alleges when the wrong suffered by the plaintiff was committed and placing it
13
side by side with the date on which the writ was issued. If the writ was issued beyond the time allowed by the applicable limitation law which is edict No 11 of 1989, then the action can be said to be statute-barred.”
This Court, Per Bulkachuwa, JCA (as then she was) in the case of Yare v. NSIWC (2006) 2 NWLR (Pt. 965) P. 546 @ 553, espoused thus:
?In determining when a cause of action is said to have accrued the Courts are enjoined to consider the plaintiff?s statement of claim or the factual situation on which the plaintiff relies to support his claim. See Ogbimi v. Ololo (supra); Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501; Ogbah v. BDU (Jos Branch) (2001) 3 NWLR (Pt.701) 579.?
In suit No: Kws/378/2018, commenced by an originating summons filed on the 29th of October, 2018, the appellant as claimant (applicant) posed the following question for determination by the lower Court:
Whether or not, considering the combined effect of the general provision of Section 87 of the Electoral Act, 2010, as amended and the 1st defendant?s Electoral Guide lines for primary election, the claimant is not entitled to have his
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name forwarded/submitted to the 2nd defendant for publication as the 1st defendant?s candidate for the 2019 general election in to Ilorin East/Ilorin South Federal Constituency in the House of Representatives, having scored the highest votes cast at the 1st defendant?s primary election held on the 5th October, 2018.
The appellant (as claimant) then sought the following reliefs, upon the determination of the question posed supra:
1) A declaration that, considering the combined effect of the general provision of Section 87 of the Electoral Act, 2010, as amended and the 1st defendant?s Electoral Guide lines for primary election, the claimant is not entitled to have his name forwarded/submitted to the 2nd defendant for publication as the 1st defendant?s candidate for the 2019 general election in to Ilorin East/Ilorin south Federal Constituency in the House of Representatives, having scored the highest votes cast at the 1st defendant?s primary election held on the 5th October, 2018 by simple majority of total votes cast.
2) A declaration that the 1st defendant has no power to substitute or replace the claimant?s
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name with 3rd defendant name or any other person?s name what so ever, the claimant, having scored the highest votes cast at the 1st defendant?s primary election held on the 5th October, 2018.
3) A declaration that the purported substitution of claimant with the 3rd defendant or any other person?s as the 1st defendant?s candidate for the 2019 general election in to Ilorin East/Ilorin south Federal Constituency in the House of Representatives, is unlawful, illegal, ultra vires unconstitutional, null and void and of no effect whatsoever.
4) An Order setting aside the purported substitution of the claimant with the 3rd defendant or any other person?s as the 1st defendant?s candidate for the 2019 general election in to Ilorin East/Ilorin south Federal Constituency in the House of Representatives same being in excess of the statutory powers of the 1st respondent.
5) An Order of mandatory injunction directing the 1st defendant to recognize and restore the claimant as duly elected 1st defendant?s candidate for the 2019 general election in to Ilorin East/Ilorin south Federal Constituency in the House of
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Representatives.
6) An Order of the Court restraining the 1st defendant from submitting/forwarding the name of the 3rd defendant or name of any other person apart from the claimant to the 2nd defendant, as the 1st defendant?s candidate for the 2019 general election in to Ilorin East/Ilorin south Federal Constituency in the House of Representatives, the claimant, having scored the highest votes cast at the 1st defendant?s primary election held on the 5th October, 2018
7) An Order of the Court the 2nd defendant from accepting, recognizing and or treating the 3rd defendant as the 1st defendant?s candidate for the 2019 general election in to Ilorin East/Ilorin south Federal Constituency in the House of Representatives.
In determining whether the suit commenced by the appellant is statute-barred or not, the Court must be guided by the principles of law espoused in the case of Yare v. NSIWC and Amusan v Obideyi supra, that is, by looking at the writ of summons, the statement of claim or the affidavit as the case may be, to ascertain the date of the wrong in question which gave rise to the claimant?s complaint and comparing that
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date with when the suit was filed. If the time stated in the writ of summons/statement of claim or the affidavit in support is beyond the period prescribed by the limitation law, the action is statute-barred. The foregoing principle of law has been reinforced by the decision of the Court in the case of Mohammed v Military Administrator of Plateau State (2001) 16 NWLR (Pt. 74) P. 524 @ 545 where it was held that:-
?To determine the conditions above, what the Court will look at are the writ of summons and statement of claim alleging when the wrong which gave the plaintiff a cause of action was committed and by comparing that date with the date on which the writ of summons was filed.”
The suit filed by the appellant on the 29th day of October, 2018, has been supported by an affidavit and further affidavit which could be found on pages 33-39 and 366 to 371 respectively. The 1st respondent filed counter-affidavit which can be located on pages 318-323 of the record of appeal. The 3rd respondent also filed a counter-affidavit contained on pages 321-323 of the record of appeal. I think the gist or summation of the depositions contained in the
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affidavits referred to supra, is imperative at this juncture. The parties are at one that the 1st respondent (Kwara state Chapter) conducted primaries on the 5th October, 2018 for the election of a candidate to contest an election for membership of the House of Representative for the Ilorin South/Ilorin East Federal Constituency, Kwara State. The appellant claimed to have been the one elected, having obtained the highest votes. That the State Chairman of the 1st respondent agreed and signed the result sheet. There was a complaint made by the 3rd respondent to the 2nd respondent, who investigated the same and found that the 3rd respondent won the election. That the name of the 3rd respondent was substituted for the name of appellant on the 15th of October, 2018. The appellant stated that, when he got to know of the move to substitute his name with the 3rd respondent on the 15th of October of 2018, he travelled to Abuja to complain at the National Headquarters of the party. There, he saw the State chairman, who was not willing to talk to him. It was then that he suspected that his name was being substituted with the name of the 3rd respondent. The appellant
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asserted that he heard of the move by the 2nd respondent to substitute him with the 3rd respondent on the 15th of October, 2018, and on the 16-10-2018, he wrote a letter of complaint to the 2nd respondent. There was no action taken but later at about 14.24pm of that day he became aware that his name was not submitted at the office of the 2nd respondent, it was at the said time he knew that the name of the 3rd respondent was submitted and published as the candidate of the 1st respondent for the aforesaid election that was conducted on the 23rd of February, 2019.
Paragraphs 10, 11, 12, 13, 14, 15, and 16 of the affidavit of the appellant in support of the suit filed on the 29th of October, 2018, are germane. Same are reproduced hereunder:-
?(10) That I know as a fact that my name was submitted and or forwarded to the National Working Committee of the All Progressive Congress by the 1st respondent as the winner of the primary election in the Ilorin East/Ilorin South Federal Constituency.
(11) That I know as a fact that the report of the 2018 primary election (House of Representatives) North Central dated 10/10/2018 was signed by the
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Committee Chairman Iyiola Oladokun, whose phone number is 08033231834. The copy of the said report is hereby attached and marked as Exhibit C
(12) That I know as a fact the 1st respondent is working surreptitiously to suppress the fact as relates to the number of total votes cast for me and replace my name with the name of another aspirant who came second in the hierarchy of the result as declared.
(13) That I know as a fact that contrary to the votes cast, results collated and announced by the 1st respondent, the 1st respondent has concluded plan to replace and/or substitute my name with the name of another aspirant to be submitted to the 2nd respondent.
(14) That I know as a fact that consequent upon the preceding paragraphs, I wrote a petition dated 16th October, 2018 to the 1st respondent and same was submitted to the 1st respondent headquarters. A copy of the said petition dated 16th October, 2018 is hereby attached as Exhibit D.
(15) That I know as a fact that on 25th October, 2018 a petition was written by the Director General of my campaign Organization, Shehu A. Bashir Esq., to the 2nd respondent and same was submitted on the same
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day. A copy of the said petition dated 25th October, 2018 is hereby attached and marked as Exhibit E.
(16) That I know as a fact that I have made all necessary efforts to reach out to the Kwara State APC Chairman, Mr Bashir Bolarinwa, to discuss my palpable fear with respect to replacement of my name with the another aspirant who lost to me at the just concluded primary election to no avail.?
In paragraphs 9 to 12 of the further affidavit in support of the originating summons, the appellant deposed to facts as follows:-
(9) That I know as a matter of fact that the 3rd Defendant did not challenged the result of the primary election (Exhibit B-B22) under consideration.
(10) That I know as a matter of fact that the 3rd Defendant is not the winner of the said election and was not declared as the winner of the primary election under consideration.
(11) I also know that I am the 1st Defendant?s candidate for the Ilorin East/Ilorin South Federal Constituency in the House of Representatives having scored the highest votes cast at the said primary election.
(12) That I know as a matter of fact that the name of the 3rd Defendant
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has not been forwarded to the 2nd Defendant and his name has not been published as alleged.
The 1st respondent deposed to facts in paragraph 8 to 10 of the counter-affidavit thus:
(8) That I know that in the absence of any further appeal to the NWC of the 1st defendant, the 3rd defendant was endorsed as the candidate of the 1st defendant and his name submitted to INEC
(9) That I know that the complaint of the Claimant in this case which was filed on 29th October, 2018 is in respect of the 1st Defendant?s Primary Election held on 5th October, 2018.
(10) That I know that the period between the 5th October, 2018 when the primary was conducted and 15th October, 2018 when the 3rd Defendant?s appeal was upheld; and the 29th October, 2018 when this action was filed is more than 14 days.
The 3rd respondent, in his counter-affidavit, deposed to facts in paragraphs 10, 13, 14, 15, 16 and 17 thereof thus:-
(10) That I know as a fact that I challenged the purported result being referred to before the 1st Defendants? National Appeal Committee, as set up by the 1st Defendant; as stipulated in the Claimant?s Exhibit F
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and as further rescheduled; and in line with the 1st Defendant Guidelines for the Nomination of Candidate for the 2019 General Elections-Direct Primaries, copy of the said Guidelines is annexed as Exhibit APC 2.
(13) That I know as a fact that the National Appeal Committee of the 1st Defendant did considered various appeal, including that of the Ilorin East/Ilorin South Federal Constituency under contention and as well turned in it?s decisions. Copy of the said report or decisions is attached as Exhibit APC 3.
(14) That I know as a fact that there was no further appeal to the National working Committee of the 1st Defendant on the primary election by either the Claimant or any other aspirant that participated in the primaries.
(15) That I know as a fact that based on the report in Exhibit APC 3 above, my appeal was upheld and I was declared the winner of the primary Election in the Ilorin East/Ilorin South Federal Constituency in the House of Representatives.
(16) That I know as a fact that I am the 1st Defendant?s candidate for the Ilorin East/Ilorin South Federal Constituency in the House of Representatives haven been
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nominated as such.
(17) That I know as a fact that in line with Exhibit APC 2 as issued by the 1st Defendant, my name has been forwarded to the 2nd Defendant and same published, as the 1st Defendant?s candidate for the 2019 General Election into the Ilorin East/Ilorin South Federal Constituency in the House of Representative.
Learned counsel to the appellant did submit in the reply brief that by the deposition in paragraph 25 of the further and better affidavit in support of the originating summons the wrongful substitution of the name of the appellant with that of the 3rd respondent started on the 15th October, 2018 to which he reacted by writing a letter of complaint to the State Chairman of the 1st respondent on the 16th October, 2018 when he became aware of what took place the previous day. That by the provisions of Section 285 (9) of the 1999 Constitution (amended), the 14 days period which began to run from the occurrence of the event or the decision complained of. That the event of the substitution of the name of the appellant for that of the 3rd respondent began on 15-10-2018 and crystallized on the 16th of October, 2018 when he became
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aware of such act by the 1st respondent. Learned counsel referred to Exh ?D? paragraphs 2 and 3 on page 67 of the record of appeal. In view of the foregoing, learned counsel contended, it cannot be correct to assert as the learned counsel to the 1st and 2nd respondents did, that there were no sufficient material placed before the Court to determine when the cause of action crystallized, therefore, 15th of October, 2018 is the date the cause of action arose not the 16th of same month as erroneously submitted by learned counsel to the respondents.
Section 285(9) of the 1999 Constitution (4th alteration) provides thus:-
?285(9) Not withstanding 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 the interpretation and application of the provisions of Section 285(9) of the 1999 Constitution (amended), the general principles governing the interpretation of Constitutional and Statutory provisions should be adhered to in order to arrive at the purport and import of these
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provisions which have been enacted by the Legislature. The guiding principles of the interpretation of Constitutional and statutory provisions have been espoused brilliantly by Oseji JCA in the case of Amiwero v, A.-G Federation (2015) All FWLR (Pt. 802) P. 1742 @ 1769-1770, wherein the learned Justice enunciated thus:
?It is trite and well established principle of construction of statute that where the provision of a statute are clear and unambiguous, effect should be given to them as such, unless it would be absurd to do so, having regard to the nature and circumstance of the case. See Bronik Motors Ltd v Wema Ltd (1983) 1 SCNLR 296; Awolowo v Shagari (1979 6-9 SC 51; Federal Republic of Nigeria v. Osahon and Ors. (2006) All FWLR (pt. 312) 1975, (2006) 5 NWLR (pt. 973) 361 in Nwakire v. Commissioner of Police (1992) NWLR (Pt. 241) 289, 1992) 6 SCNJ 1, the Supreme Court per Nnaemeka-Agu JSC, posited that:
?After all, the primary rule of construction is the literal construction, which requires that we give the words used in the statute and only those words, their ordinary and natural meanings, omitting no words and adding none, in the
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construction we arrive at, save in accordance with the recognized rules of construction. See also Egbe v Yusuf (1992) 6 NWLR (pt. 245) 1; Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (295) 335, (1992) 11-12 SCNJ 92; where an interpretation of statute will result in defeating the essence of the statute, the Court will not lend its weight to such interpretation. The language of the statute must not be stretched to defeat the aim of the statute. See Ansaldo (Nig) Ltd v National Provident Fund Management Board(1991) 2 NWLR (pt. 174) 392, (1991) 3 SCNJ 22.?
Muktar, CJN, in the case of A.G Federation v. Lagos State (2013) 16 NWLR (Pt. 1380) P. 249 @ 317, re-emphasized the need to interpret the provisions of statutes with a view to achieve the intention of the legislature in providing for the statutory provisions, thus:
?it is a settled principle of interpretation that provisions in statutes must be given their simple and direct meaning, which construes and give the statute it?s legal meaning. In the process of doing so, the intention of the legislature must be explored and taken into consideration, but will not be to the extent of bringing into the provision a
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different complexion from what was intended by the legislature. In this wise, the Court should confine itself to the plain and unambiguous meaning of the words used.”
An ordinary and literal interpretation of the provisions of Section 285(9) of the 1999 Constitution (as amended) shows that it is the date of the occurrence of the ?event?, ?decision? or ?action? complained of in the suit that should determine when the cause of action accrued or arose. By Exh ?D? the letter of complaint written to the 2nd respondent by the appellant which is an annexture to the affidavit in support of the suit filed on the 29th of October, 2018, the National Working Committee of the 2nd respondent who investigated the complaint of the 3rd respondent decided to substitute the name of the appellant with the name of the 3rd respondent. The decision was taken during the investigation carried out on the 15th of October, 2018. The appellant wrote the letter of complaint on the 16th October, 2018. It is worthy of note that the provisions of Section 285(9), Constitution 1999 refers to date of the ?event?
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?decision? or ?action? complained of, not the date when the complainant knew or becomes aware of the decision, action or event that took place for the determining of the occurrence of the cause of action. If the legislature had intended that the date the complainant knew or becomes aware when the event or decision or action took place it would have expressly stated so. It is very clear from the provisions of Section 285(9) of the Constitution 1999 (as amended) it is the date of occurrence of the event or decision or action that is relevant in the computation of the limitation period.
?By Exh ?D?, an annexture to the affidavit in support of the suit filed on the 29-10-2018, the appellant alleged he was at the National Headquarters of the 2nd respondent where the State Chairman of the 2nd respondent purportedly submitted the form containing the name of the 3rd respondent who was substituted instead of the appellant. The occurrence of the event, decision or action in respect of the complaint of the appellant regarding the substitution of his name with that of the 3rd respondent accrued or took place on the 15th October,
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2018, when the committee decided to substitute the 3rd respondent to the appellant, not on the 16th of same month as asserted by the respondents. In other words, the cause of action in the suit filed by the appellant on the 29th of October, 2018, accrued on the 15th of October, 2018.
On the contention of the appellant that in computing the limitation period, time began to run on the 16th of October, 2018 not on the 15th of the same month, cannot be correct in view of the decisions of the Courts in several cases, amongst which are Ikpamaku v. Makolomi (2006) All FWLR (pt. 318) P. 881 @ 891; Ekulo Farm Ltd v. UBN Plc (2006) All FWLR (pt. 319) P. 855 @ 922; Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt.995) P. 573 @ 573 and Towoju v Gov. Kwara State (2006) All FWLR (Pt. 321) P.1365 @ 1391. The position of the law is that, in an election matter, where time is of the essence, in computing the limitation period or any other time, the date of the occurrence of the event, decision or action is to be taken into consideration in the determination of whether a suit was filed within the limitation period.
?The appellant?s suit No; Kws/378/2018, was filed on
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the 29th of October, 2018. By simple arithmetic, from 15th to 29th day of October, 2018, it is more than 14 days, the period within which any legal action challenging any pre-election matter must be commenced before any Court can be seised of the jurisdiction to hear and determine same. Suit No:- Kws/378/2018, having been filed in violation of the provisions of Section 285(9) of the 1999 Constitution (amended) it is statute-barred, therefore it is incompetent. I am in full agreement with the learned judge of the lower Court when he held on page 503 of the record of appeal, thus:
?In the peculiar circumstances of this matter and in the light of the above authority and many more in that regard, I too agree totally with Abdulganiyu Bello Esq., the learned counsel for the 1st and 3rd Defendants that what was presented to this Court as a pre-election matter is incompetent same having been filed a day outside the time allowed just like it happened in the above authority too. I hold that this matter is statute-barred however passionate the claimant may be and however sympathetic and sentimental this very court itself may feel in the circumstance.”<br< p=””
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The judgment of the lower Court cannot be faulted.
Consequently, I resolve the sole issue against the appellant. The appeal therefore fails, the judgment of the lower Court delivered on the 4th day of April, 2019, in suit No: Kws/378/2018, is hereby affirmed.
I make no order as to cost.
HAMMA AKAWU BARKA, J.C.A.: The instant appeal fall out of the decision of the Kwara State High Court of Justice sitting in Ilorin in suit No. KWS/378/2019, which decision was delivered on the 4th day of April, 2019.
?The salient facts germinating the instant appeal has b?een carefully and lucidly set out in the lead judgment for which I see no need to reproduce the same. Suffice to say that parties as well as the lower Court are agreed that in resolving the dispute between the parties, calls for the interpretation of Section 285 (9) of the 1999 Constitution (4th alteration) which provided 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 or action complained of in the suit.”
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The clear implication of the above cited provision of the law is that on pre-election matter must mandatorily be filed later than 14 days and further the commencement of when the days are to be the event being complained of.
The pin point of the instant appeal is whether the appellants action before the lower Court was statute barred or not? Two positions were considered in the determination of the vexed issue. Most particularly whether the interpretation Act should be employed in determine when the course of action can be said to have accrued. The Apex Court in the case of Okechukwu vs INEC (2014) 9 SC 1, positioned the law to the effect that the interpretation Act on the computation of time in election matters is inapplicable. Thus in Omisore Vs Aregbesola & Ors (2015) 5-6 SC 1 at 79, the Supreme Court reaffirmed the point that the Interpretation Act is inapplicable as for as the computation of time in election matters is concerned. Nweze JSC on the issue stated thus:
?The simple answer is that the said Interpretation Act is inapplicable to this matter being an election matter, of Okechukwu vs INEC and Ors (supra). Thus, as his reply was not
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filed in strict fidelity to the time protocol ordained in Paragraph 16 (supra), the lower Court, rightly struck it out. This must be so because the timelines therein are sacrosanct due to the peculiar nature of election matters which are time-bound, Buhari Vs. INEC and Ors. (2008) 12 SC (pt. I) 1. Strictly speaking, this sort of invidious provision should not feature in a user-friendly judicial process. However, in the peculiar circumstance of the urgency involved in the determination of such electoral disputes, the much this Court can do is to wink at the tyranny of deadlines entrenched therein. In effect, any process filed out of time is incompetent and is liable to be struck out, of Okechukwu vs INEC & ors. (supra).”
On the question therefore as to when it can be said that the cause of action can be said to have accrued, the day to be reckoned with, would be the date of the occurrence of the event being complained on, and by a simple mathematical calculation to see if the action was filed within the time allowed by law. I have in strict fidelity with the provision of Section 285 (a) of the 4th alteration of the 1999 Constitution of the Federal Republic of Nigeria,
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of the view that the cause of action indeed accrued on the 15th day of October, 2018, and the action having been commenced on the 29th day of October, 2018, a period more that the 14 days permitted by law renders the suit before the lower Court incompetent and the holding of the lower Court in that aspect cannot be faulted.
I agree with the lead judgment that the appeal is wanting in merit, and ought to and is hereby dismissed.
I abide on order made as to costs.
BALKISU BELLO ALIYU, J.C.A.: My learned brother Ibrahim Shata Bdiliya, JCA has availed me with the draft of the judgment just delivered before today. His Lordship has adequately dealt with the sole issue for determination and I totally agree with the reasoning and conclusion reached in resolving the issue against the Appellant. This appeal once again raised the very vex issue of the strictness of time protocol regarding litigations in elections matters, especially with regards to the provisions of Section 289(9) of the 1999 Constitution (4th Alteration), which intendment is clearly to limit and reduce the time of litigation in those
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causes. Election disputes have been elevated to a special class of their own and being referred to as being sui generis and therefore the Interpretation Act that is applicable in other proceedings is not applicable regarding computation of time in election matters. See Omisore & Anor. V. Aregbesola & Ors. (2015) LPELR-24803 (SC) PER Nweze JSC and L.P & Ors. vs. Amao & Ors. (2017) LPELR-43248 (CA) Per Barka JCA.
The Appellant in this case has failed to show this Court that the lower Court’s decision was wrong in its application of the facts of this case to the prevailing and applicable case law and instruments it relied upon in its judgment and therefore his appeal must fail.
Consequently, for the fuller reasons in the lead judgment and upon these few words of mine, I affirm the well considered Judgment of the High Court of Kwara State delivered on the 4th April 2019 by Hon. Justice A. S. Oyinloye In respect of suit No: KWS/378/2018.
Appeal dismissed by me.
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Appearances:
J. M. Dada, Esq. with him, Victoria Olutimehin and B. AdewumiFor Appellant(s)
Abdulganiyu Bello with him, Abdulrasheed A. Usman and M. L. Abdullahi for the 1st and 3rd Respondents.
Ayodele Akerele, Esq. with him, R. C. Nwankwo for the 2nd RespondentFor Respondent(s)
Appearances
J. M. Dada, Esq. with him, Victoria Olutimehin and B. AdewumiFor Appellant
AND
Abdulganiyu Bello with him, Abdulrasheed A. Usman and M. L. Abdullahi for the 1st and 3rd Respondents.
Ayodele Akerele, Esq. with him, R. C. Nwankwo for the 2nd RespondentFor Respondent