SAIDU ABDU ISAH v. BELLO HARUNA & ORS
(2019)LCN/13350(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/J/130/2019
RATIO
PRE-ELECTION MATTERS: WITHIN HOW MANY DAYS ARE PRE-ELECTION MATTERS TO BE FILED
Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) states thus:
Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.PER OLOUKUROMO MOSES UGO, J.C.A.
CAUSE OF ACTION: DEFINITION
Cause of action is the entire set of facts or circumstances giving rise to an enforceable action and includes all those things necessary to give rise to a right of action, every fact which is material to be proved to entitle the plaintiff to succeed: see Ezeani v. Nigerian Railway Corporation (2015) 3 NWLR (PT 1445) 139 @ 150 relied on by appellant. In Labode v. Otubu (2001) FWLR (PT 43) 207 @ p.232 para G-H (S.C.) it was said that an act on the part of a defendant which gives the plaintiff a cause of complaint is a cause of action. In Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd & Anor (1987) 1 S.C. 198 @ 312 -313 cause of action was defined as the facts or combination of facts which gave the plaintiff the right to sue.PER OLOUKUROMO MOSES UGO, J.C.A.
LIMITATION OF ACTION: WHEN TIME BEGINS TO RUN
As to when time begins to run for purposes of limitation of action, it was said (Adekeye J.S.C.) in Hassan v. Aliyu (2010) LPELR-1357 (SC) p. 85-86 that:
For purposes of the limitation of action, time begins to run from the moment the cause of action arose or accrued. Therefore in determining whether a cause of action is statute barred or not, it is pertinent to ask when time begins to run. Time begins to run when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.PER OLOUKUROMO MOSES UGO, J.C.A.
ELECTION PETITION: NATURE
Election petitions and all matters related thereto including pre-election matters are sui generis: see Mato v. Hember (2018) 5 NWLR (PT 1616) 258, (2018) ALL FWLR (PT 925) 146, (2017) LPELR-42675 (SC); Hassan v. Aliyu (2010) 17 NWLR (PT 1223) 547, (2010) LPELR-1357 (SC); Lokpobiri v. Ogola (2016) 3 NWLR (PT 1499) 328. The expression sui generis is derived from Latin and means in a class or group of its own, not like anything else, different from all other people or things, unique, peculiar.
In PDP V. Ezeonwuka (2017) LPELR-42563(SC) p. 68-69, it was said (Kekere-Ekun, J.S.C.) that:
Election and election related matters are sui generis. They are very much unlike ordinary civil or criminal proceedings. See Hassan v. Aliyu (2010) 17 NWLR (PT 1223) 547; James v. INEC (2010) 17 NWLR (PT 1223) 547. In Orubu v. National Electoral Commission (1988) 5 NWLR (PT 94) 323 @ 347, His Lordship Uwais, J. S.C. (as he then was) opined thus:An election petition is not the same as ordinary civil proceedings, it is a special proceeding because of the peculiar nature of elections which by reason of their importance to the well-being of a democratic society are regarded with aura that places them over and above the normal day to day transactions between individuals which give rise to ordinary or general claims in Court.PER OLOUKUROMO MOSES UGO, J.C.A.
PRE-ELECTION MATTERS: NATURE
See also Obasanya v. Babafemi (2000) 15 NWLR (PT 689) 1 @ 17, per Uwais, J.S.C., (as he then was); Abubakar v. Yar Adua (2008) ALL FWLR (PT 404) 1409 at 1450 E-F. Since primary elections produce candidates who will eventually contest the elections, it goes without saying that pre-election matters, such as the instant case, are also sui generis.PER OLOUKUROMO MOSES UGO, J.C.A.
ELECTION PETITION: WHY ELECTION PETITIONS AND RELATED MATTERS ARE SUI GENERIS
As shown above, what makes an election petition and its related proceedings like pre-election matters sui generis and of a special kind is that, beyond the litigants before the Court there is also the interest of the electorate who defied rain and shine to exercise their civic right to vote in the elections to be represented in Government.PER OLOUKUROMO MOSES UGO, J.C.A.
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
SAIDU ABDU ISAH Appellant(s)
AND
1. BELLO HARUNA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. ALL PROGRESSIVES CONGRESS Respondent(s)
OLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the Federal High Court, Bauchi Judicial Division, of 26th March 2019 granting, albeit only partially, the reliefs sought by 1st Respondent (plaintiff therein) in his originating summons against appellant and 2nd and 3rd respondents as defendants.
The relevant facts are that appellant along with 1st respondent and three others, all members of 3rd Respondent, the All Progressives Congress (APC), did contest 3rd Respondent?s 5th October 2018 Primary Election for the right to its candidacy for the General Elections then scheduled by 2nd Respondent (INEC) for March this year, 2019, to represent Darazo/Sade State Constituency in the Bauchi State House of Assembly. Third respondent, as is the practice, set out Guidelines for its said Primary election. By those Guidelines and its Constitution, the aspirant who polls the majority of votes in its Primary Election flies its flag for the General Election. That much is common ground between parties.
?First Respondent by his said Originating summons claimed he won that election with a
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majority of 4842 votes, that one Adamu Ibrahim came second with 3811 while the appellant only came a distant third with 1135 votes, followed closely by one Aminu Ishaku Ibrahim with 1124 votes and one Lawan Dauda taking the rear with 722 votes. He claims to have been also declared that same 5/10/2018 by 3rd respondent as the winner of the Primary Election and its candidate for the General Election. He has proof of this in the form of the Result of the Primary Election attached to his summons as Exhibit E. That Result is signed by one Professors A.B. Mohammed and Dalhatu Sahead, Chairman and Secretary respectively of 3rd Respondent?s Election Committee.
All was good and well up to that point.
Unfortunately, that serene state of affairs did not seem to last very long, for according to 1st respondent, he later found out to his consternation that instead of submitting his name to 2nd respondent as its candidate for the said Sade/Darazo State Constituency in the General Election, 3rd respondent rather submitted the name of appellant who, as said earlier, only came a distant third in the Primary Election of 5th October 2018.
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Having discovered that only on 19th November 2018, according to him, he filed his Originating summons on 27/11/2018 to challenge that action of his political party and there sought answers to the following two questions:
1. Whether the 1st defendant?s (APC) act of forwarding the name of the 3rd defendant (who did not score the highest number of votes cast at the APC State House of Assembly primary Election for Darazo/Sade Constituency of Bauchi State held on the 5th October 2018) to the 2nd defendant as its candidate for the forthcoming 2019 State House of Assembly primary Election for Darazo/Sade Constituency of Bauchi State in place of the Plaintiff who scored the highest number of votes cast at the APC Primary Election held on the 5th October 2018 is in compliance with the provisions of Section 87(1) (2) (3) (4) (c) (i) (ii) of the Electoral Act 2011 (as amended) and the APC Constitution 2014 (as amended) and APC Guidelines on nomination of candidates for public office.
2. Whether having regard to the combined effect of the provisions of Section 87(1) (2) (3) (4) (c) (i) (ii) of the Electoral Act 2011 (as amended) and Articles 20 (iii) (iv) and 33(xv) of the
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APC Constitution 2014 (as amended) and APC Guidelines for nomination of candidates for public office, the 1st defendant is not mandated by the law to and its Constitution, Regulations and Guidelines for Party primary Election to forward the name of the plaintiff (who scored the highest number of votes at the end of voting and declared winner of the APC State conducted House of Assembly primary Election for Darazo/Sade Constituency of Bauchi State held on the 5th October 2018) to the 2nd defendant (INEC) as its nominated candidate for the forthcoming 2019 State House of Assembly Election for the seat of member representing Darazo/Sade Constituency of Bauchi State (the General Election).
First respondent also sought the following reliefs from the Court should it answer the said two questions in his favour:
1. A DECLARATION that it is unconstitutional, illegal and unlawful for the 1st Defendant (APC) to forward the name of the 3rd Defendant (who scored 1,135 votes at the primary election) to the 2nd Respondent (INEC) as it candidate for the forthcoming 2019 State House of Assembly election for the seat of member representing Darazo/Sade Constituency of
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Bauchi State, in the place of the Plaintiff who scored the highest number of votes (4842) at the end of the APC conducted primary Election held on the 5th October 2018 and was been dully declared winner in accordance with the Section 87(1) (2) (3) (4) (c) (i) (ii) of the Electoral Act 2010 (As Amended) and Articles 20 (iii) (iv) and 33 (xv) of the APC Constitution 2014 (As Amended) and APC Guidelines for nomination of candidate for public office without any Court order disqualifying the Plaintiff or any cogent and verifiable reasons.
2. A DECLARATION that the 1st Defendant (APC) is duty bound by law having regards to the combined reading of Section 87 (1), (2), (3), (4) (c) (i) (ii) of the Electoral Act (As Amended) and APC Guideline for the nomination of candidate for public office to forward the name of the Plaintiff alone as the highest scorer to the Second Defendant (INEC) as it candidates for the forthcoming 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State (the General Election) who scored 4842 votes and came first with the highest number of votes cast at the APC conducted primary election for State House of Assembly
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for Darazo/Sade Constituency of Bauchi State held on the 5th October, 2018.
3. AN order Declaring that the Plaintiff who scored the highest number of votes cast at the 1st Defendant?s (APC) primary election at Bauchi for Darazo/Sade Constituency of Bauchi State held on the 5th day of October, 2018 is the only rightful candidate of the 1st defendant (APC) whose name must be forwarded to the 2nd defendant (INEC) as it (APC) candidate for the forthcoming 2019 State House of Assembly election for the seat of member representing Darazo/Sade constituency of Bauchi State.
4. AN Order directing the 1st defendant to forward the name of the Plaintiff to the 2nd defendant to be its candidate for the forthcoming 2019 State House of Assembly election for the seat of member representing Darazo/Sade Constituency of Bauchi State in place of the name of the 3rd defendant earlier forwarded to the 2nd Defendant flagrant in disregard to the relevant express provisions of the Electoral Act, and APC Constitution, and APC Guidelines for the nomination of candidate for public office.
5. AN ORDER for the 2nd Defendant to forthwith publish the name of the Plaintiff for the
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purpose of the conduct of 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State as the rightful and lawful candidate of the 1st Defendant (APC) having scored the highest number of votes cast at the primary election held on the 5th October, 2018 to exclusion of any other person.
6. AN Order of perpetual Injunction restraining the defendants jointly and severally by themselves, servants, their agents, privies or assigns from further recognizing and or retaining or further re-publishing the name of the 3rd Defendant in INEC election manuals, notices and any other processes or to lead or leading to the conduct of forthcoming 2019 State House of Assembly Election for Darazo/Sade Constituency of Bauchi State.
He swore to a seven-paragraph affidavit in support of his summons stating how, as explained above, he won the said 5th October, 2018 Primary Election by polling 4842 v
