USMAN v. APC & ORS
(2022)LCN/16594(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, February 09, 2022
CA/ABJ/CV/15/2022
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
ABUBAKAR USMAN APPELANT(S)
And
1. ALL PROGRESSIVES CONGRESS (APC) 2. SALAUDEEN YAU 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
WHETEHR OR NOT AN ISSUE FOR DETERMINATION CAN COVER MORE THAN ONE GROUND OF APPEAL
As a demonstration for the purpose of clarity, an issue can cover more than one Ground of Appeal while a Ground of Appeal can only give birth to one issue. Where a Ground of Appeal gives birth to more issues, then those issues coming from that ground are incompetent. This Court has held in the case of HON SULEIMAN ALHASSAN GWAGWA V HON. MURTALA USMAN KARSHI, UNREPORTED APPEAL NO. CA/ABJ/14/766/2021 DELIVERED ON 3/12/2021 as follows:
“So clearly, by the attitude of this Court and indeed the Apex Court of the land, the principle against proliferation of issues from a single ground is frowned at and viewed with disfavor.
The principle is that a number of grounds could, where appropriate, give birth to a single issue, but a pregnant ground cannot give birth to twins called issues, as done in the instant Appellant’s Brief of Argument.”
See LABIYI V ANRETIOLA & ORS (1992) LPELR 1730 (SC). PER SENCHI, J.C.A.
WHETHER OR NOT PROLIFERATION OF ISSUES WILL RENDER THE ISSUES FORMULATED INCOMPETENT
In the case of STATE V MUHAMMAD (2019) LPELR 48122, the Supreme Court on whether proliferation of Issues for Determination will automatically render the issues so formulated incompetent held as follows:
“I intend to deal with the first issue on the propriety of the lower Court deciding the appeal on the merit despite the fact that the Respondent as appellant who was convicted along with other two accused by the trial Court filed only one ground of appeal but in their briefs of argument raised and argued two issues. According to the learned counsel for the appellant in the present appeal, this is a classic case of multiplicity or proliferation of issues which effectively rendered the issues so formulated incompetent and liable to be struck out along with the sole Ground of Appeal learned counsel anchored his argument on the striking out of the issues on the following cases. See AGU V IKEWIBE (1991) 3 NWLR (pt 180)385 at 401, YAMS (NIGERIA) LTD V GREAT INSURANCE CO. LTD, (2007)14 NWLR (Pt 1055)584, AMODU V COMMANDANT, POLICE COLLEGE MAIDUGURI, (2009)15 NWLR (Pt 1163) 73.”
In the case of YADIS (NIG) LTD V GREAT (NIG) INS. CO. LTD, (SUPRA) also cited by learned counsel to the 1st Respondent, the Supreme Court held:
“It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination.
See also the decision of this Court in the unreported decision of HON. SULEIMAN ALHASSAN GWAGWA V HON. MURTALA USMAN KARSHI & 17 ORS delivered on 3rd December, 2021 in Appeal No.CA/ABJ/766/2021. PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory Abuja in suit no FCT/HC/CV/1111/2021 delivered on 9th day of December, 2021 by S. B. Belgore, J. The Appellant (as Claimant) had approached the lower Court for the determination of the following questions:
1. Whether in view of Section 87 of the Electoral Act, 2010 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressive Congress, the APC Guidelines for nomination of candidates for the Council Ward Election 2022 – Direct primaries relating to the conduct and result of the APC Primaries and the upholding and declaration at the venue of the election, it was lawful for the 1st Defendant to have forwarded the name of the 2nd Defendant to the 3rd Defendant as the 1st Defendant’s nominated candidate in respect of the Gwagwa Ward Council.
2. Whether in view of Section 87 of the Electoral Act, 2010 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressive Congress, the APC Guidelines for nomination of candidates for the Council Ward Election 2022 – Direct Primaries relating to the conduct and result of the APC Primaries and the upholding and declaration at the venue of the election, it was lawful for the 1st Defendant to change the result of the primary election it conducted for Gwagwa Ward in which the Claimant emerged winner and was so declared by the election committee of the 1st Defendant.
3. Whether in view of Section 87 of the Electoral Act, 2010 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressive Congress. The APC Guidelines for nomination of candidates for the Council Ward Election 2022 – Direct primaries relating to the conduct and result of the APC Primaries and the upholding and declaration at the venue of the election, the 1st Defendant was not bound in law to forward the name of the Claimant to the 3rd Defendant as the 1st Defendant’s nominated candidate in respect of the Gwagwa Ward in the 2022 Council Election.
4. Whether in view of Section 87 of the Electoral Act, 2020 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressive Congress, the APC Guideline for nomination of candidates for the Council Ward Election 2022 – Direct Primaries relating to the conduct and result of the APC Primaries and the upholding and declaration at the venue of the election, the 3rd Defendant is not bound in law to remove the name of 2nd Defendant as the nominated candidate of the 1st Defendant and replacing same with the name of the Claimant as the 1st Defendant’s nominated candidate in respect of the Gwagwa Council election in the 2022 Election.
5. Whether in view of Section 87 of the Electoral Act, 2010 (as amended) and having regards to the provisions of Article 20 of the Constitution of the All Progressive Congress, the APC Guidelines for nomination of candidates for the Council Ward Election 2022 – Direct Primaries relating to the conduct and result of the APC Primaries and the upholding and declaration at the venue of the election, the forwarding of the name of 2nd Defendant by the 1st Defendant to the 3rd Defendant as the 1st Defendant’s nominated candidates in respect of Gwagwa Ward Council in the 2022 Election is not illegal, null and void.
And if the questions were answered in the positive, the Appellant claims the following reliefs:
1. A declaration that upon the interpretation of the Section 87 (4) C of the Electoral Act, 2010 (as amended), Article 20 iii of the Constitution of the 1st Defendant, the 1st Defendant’s Guidelines for the nomination of candidates for the 2022 Ward Council Election 2022 – Direct Primaries. The result of the 1st Defendant’s Primary Election for the nomination of the 1st Defendant’s candidate in respect of the Gwagwa Ward Councillorship, it was unlawful for the 1st Defendant to have forwarded the name of the 2nd Defendant to the 3rd Defendant as the 1st Defendant’s nominated candidate in respect of the Gwagwa Ward Council in the 2022 Council Election.
2. A declaration that upon the interpretation of the Section 87 (4) C of the Electoral Act, 2010 (as amended), Article 20 iii of the Constitution of the 1st Defendant, the 1st Defendant’s Guidelines for the nomination of candidates for the 2022 Ward Council Election 2022 – Direct Primaries, the result of the 1st Defendant’s Primary Election for the nomination of the 1st Defendant’s candidate in respect of the Gwagwa Ward Councillorship, the 1st Defendant was bound in law to forward the name of the Claimant to the 3rd Defendant as the 1st Defendant’s nominated candidate in respect of the Gwagwa Ward Council in the 2022 Council Election.
3. A declaration that upon the interpretation of the Section 87(4) C of the Electoral Act, 2010 (as amended), Article 20 iii of the Constitution of the 1st Defendant, the 1st Defendant’s Guidelines for the nomination of candidates for the 2022 Ward Council Election 2022 – Direct Primaries, the result of the 1st Defendant’s Primary Election for the nomination of the 1st Defendant’s candidates in respect of the Gwagwa Ward Councillorship, the 3rd Defendant is bound in law to remove the name of the 2nd Defendant as the nominated candidate of the 1st Defendant and replacing same with the name of the Claimant as the 1st Defendant’s nominated candidate in respect of the Gwagwa Ward Council in the 2022 Council Election.
4. A declaration that upon the interpretation of the Section 87 (4)C of the Electoral Act, 2010 (as amended), Article 20 iii of the Constitution of the 1st Defendant, the 1st Defendant’s Guidelines for the nomination of candidates for the 2022 Council Election 2022 – Direct primaries. The result of the 1St Defendant’s Primary Election for the nomination of the 1st Defendant’s candidate in respect of the Gwagwa Ward Councillorship, the forwarding of the name of the 2nd Defendant to the 3rd Defendant by the 1st Defendant as its nominated candidates in respect of Gwagwa Ward in the 2022 Council Election is illegal, null and void.
5. A declaration that upon the interpretation of the Section 87(4) C of the Electoral Act, 2010 (as amended), Article 20 iii of the Constitution of the 1st Defendant, the 1st Defendant’s Guidelines for the nomination of candidates for the 2022 Ward Council Election 2022 – Direct Primaries, the result of the 1st Defendant’s Primary Election for the nomination of the 1st Defendant’s Candidate in respect of the Gwagwa Ward Councillorship, the publication of the name of the 2nd Defendant as the candidate of the 1st Defendant in respect of Gwagwa Ward in the 2022 Council Election by the 3rd Defendant is illegal, null and void.
6. An order of this Honourable Court directing the Defendants to forthwith recognize the Claimant as the duly nominated candidate of the 1st Defendant in respect of the Gwagwa Ward in the 2022 Council Election.
7. An order of this Honourable Court directing the 3rd Defendant to immediately replace and publish the name of the 2nd Defendant with the name of the Claimant as the 1st Defendant’s duly nominated candidate in respect of Gwagwa Ward in the 2022 Council Election.
8. An order of injunction restraining the 2nd Defendant from parading himself as the candidate of the 1st Defendant for the Gwagwa Ward at the 2022 Council Election.
9. The cost of this suit.
(See pages 2-5 of the Record of Appeal)
The Appellant in support of his Originating Summons filed an Affidavit of 16 paragraphs duly deposed to by the Appellant himself with exhibits attached thereto. The Appellant also filed a written address in further support of the Originating Summons.
The 1st Respondent, on service of the Appellant’s originating processes, filed a Preliminary Objection seeking the following reliefs:
1. An order of the Honourable Court striking out the suit in its entirety for want of jurisdiction to entertain same as the suit is statute barred by the operation of Section 285 (9) of the 1999 Constitution (as amended)
2. An order of this Honourable Court striking out this suit for the Claimant’s lack of locus standi to continue to prosecute this suit as he has ceased being a member of the 1st Defendant by the operation of law, particularly Article 21 (D) (V) of the All Progressives Congress Constitution attached as Exhibit B to the affidavit in support of the Claimant’s originating summons.
3. And order of Court dismissing this suit in its entirety for want of a reasonable cause of action entitling the Claimant to the reliefs sought on the face of the originating summons.
4. And for such order(s) or further order(s) as this Honourable Court may deem fit to make in the circumstances.
The grounds of objection were predicated upon the following:
1. That by virtue of Section 285 (9) of the Constitution, this suit has become statute barred owing to the failure of the Claimant to file same within 14 days from the day of the administrative action complained of.
2. That by Article 21 (D) (V) of the 1st Defendant’s Constitution (Exhibit B on the originating summons). The Claimant lacks the locus standi to institute this suit as he has not exhausted the internal remedies provided for by the said Constitution.
3. That the Claimant has not placed the proper materials before this Court to enable the Court exercise jurisdiction.
4. That this suit is bereft of substance and lacks any reasonable cause of action.
The 1st Respondent’s Counsel also filed a Written Address in support of the Preliminary Objection. The 2nd Respondent pursuant to the Originating Summons of the Appellant served on him, filed a Counter-Affidavit of seven (7) paragraphs duly sworn by one Godwin Sambo, a Litigation Secretary in the law firm of Ebere Ahanonu Law Consult. The 2nd Respondent also filed a written address in support of his Counter-Affidavit in opposition to the Appellant’s Originating Summons.
The Appellant on receipt of the Counter-Affidavit of the 2nd Respondent filed a Further Affidavit to the 2nd Respondent’s Counter Affidavit. A Written Address was also filed by the Appellant’s Counsel.
The Appellant on the 26th November, 2021 filed a reply to the 1st Respondent’s Preliminary Objection dated 27th September, 2021. Subsequently, the 1st Respondent on the 29th November, 2021 filed a reply on points of law in reaction to the Appellant’s Written Reply to its Preliminary Objection.
The facts of this case as disclosed by the Affidavit of the Claimant are as follows:
1. That I am the Claimant in this suit and by virtue of which position, I am conversant with the facts herein stated.
2. That I am a citizen of Nigeria resident in Abuja Municipal Area Council and a registered and financial card-carrying member of the 1st defendant in the Federal Capital Territory, Abuja with membership registration number FCT/ABC/06/16216. A copy of the card is hereby attached and marked as Exhibit A.
3. That the 1st Defendant is a registered Political Party in Nigeria registered by the 3rd Defendant to field candidates for elective positions in Nigeria with its Abuja-FCT Secretariat office located at plot 1197 Cadastral Zone B02, Durumi District, Along Area 1, Games Village Road, Abuja FCT and its National Secretariat located at No. 40 Blantyre Street, Off Ademola Adetokunbo Street, Wuse II, Abuja.
4. That the 2nd Defendant is a member of the 1st Defendant and was an aspirant at the primary election for the nomination of the 1st Defendant’s candidate in respect of Gwagwa Ward in the 2022 Ward Council Election and lives at Gwagwa within the jurisdiction of this Honourable Court.
5. That the 3rd Defendant is a constitutional and statutory body with the powers which includes the power to conduct, organize and supervise all elections into elective positions in Nigeria and to monitor activities of Political Parties with her headquarters located in Maitama, Abuja within the jurisdiction of this Honourable Court.
6. That I know as a fact that the 1st Defendant, being a registered Political Party has a Constitution which governs its activities; a copy of the 1st Defendant Constitution is attached and marked as Exhibit B.
7. That preparatory to the conduct of Primary Elections for the nomination of all its candidates in the upcoming 2022 Council Election, the 1st Defendant issued guidelines titled Guidelines for the Nomination of candidates for the 2022 Council Election 2022 – direct primaries; copy of the said guidelines in attached and marked Exhibit C.
8. That as a member of the 1st Defendant, I purchased the expression N150,000.00 and N350,00.00, the evidence of the payment of the said sums are attached and marked as Exhibit D1 and D2 respectively.
9. That I filled out the Expression of Interest Form and the Nomination Form to vie for nomination as the candidate of the 1st Defendant in respect of Gwagwa Ward in the 2022 Council Election and submitted same to the 1st Defendant, acknowledged copies of the receipt of my duly filed out Expression of Interest Form and Nomination Form by the 1st Defendant are attached and marked Exhibit E1 and E2 respectively.
10. That the primary election for the nomination of the candidate of the 1st Defendant in respect of the Gwagwa Ward Counsellorship candidate held on the 24th April, 2021 at Gwagwa Abuja-FCT, the record of the votes cast which I clearly won and declared winner were as follows:
i. ABUBAKAR USMAN 214
ii. SAUHUDEEN YAU 40
Copy of the duplicate of the record of the votes casted and issued to me is attached and marked Exhibit F.
11. That the said primary election was free and fair and the conduct was very successful and my emergence as the winner of the primary was not in doubt as the result was duly signed by representatives of aspirant, 1st and 3rd Defendant representative, Nigeria Police and Election Committee representative.
12. That after my emergence as the nominated candidate of the 1st Defendant in the primary election for the Gwagwa Ward Councillorship candidate and was so declared, I was inundated by calls and visit by well-wishers but I was shocked and flabbergasted that the 1st Defendant submitted the name of the 2nd Defendant to the 3rd Defendant as the winner of the primary election clearly won by me. The said forwarding letter of candidates with reference APC/NHDQ/INEC/19/021/015A dated 25th May, 2021 from the 1st Defendant to the 3rd Defendant herewith attached and marked Exhibit G.
13. That the action and submission of the name of the 2nd Defendant by the 1st Defendant to the 3rd Defendant came to my knowledge after the said name of the 2nd Defendant was published by the 3rd Defendant at her office in the list of candidates for Federal Capital Territory Counsellor in the 2022 Ward/Council Election by the 3rd Defendant.
14. That unless this Honourable Court intervene, the 1st Defendant will continue to act with impunity and disregard to the result of the Primary Election duly conducted by it for the Gwagwa Ward Counsellorship in which I emerged winner as affirmed by valid casted votes. A recorded video wherewith I was declared winner is hereby attached and marked Exhibit VD1.
Briefly put, the Claimant (Appellant) is a member of the 1st Defendant (1st Respondent) who duly purchased the Expression of Interest Form and Nomination Form of the 1st Respondent. The Appellant was screened and cleared by the 1st Respondent’s Screening Committee to contest the Primary Election of the 1st Respondent for Gwagwa Ward Councillorship. According to the Appellant’s Affidavit and exhibited documents, he won the Primary Election of the 1st Respondent and was issued with Declaration of Result Form wherein he scored the highest number of votes cast at the primary election. However, to his chagrin, the 1st Respondent instead of forwarding his name to the 3rd Defendant (3rd Respondent, INEC) forwarded the name of the 2nd Defendant (2nd Respondent) as candidate of the 1st Respondent on 25th May, 2021. The Appellant averred that he never withdrew his candidature from the 1st Respondent’s Ward/Councillorship Election, 2022.
Aggrieved by the decision of the 1st Respondent in forwarding the name of the 2nd Respondent to the 3rd Respondent, the Appellant on 16th June, 2021 filed this suit before the lower Court. On 9th December, 2021, the lower Court delivered its Judgment and held as follows:
“It seems to me I should bring up the dates once more. On 25/5/2021, the Claimant became aware that the 1st Defendant did not submit his name to the 3rd Defendant as their candidate for Councillorship Election. In fact, a publication was made by INEC to that effect.”
(See 2nd paragraph page 178 of the Record of Appeal)
The lower Court continues:
“Let us now enter a mathematics arena. From 25th May, 2021 to 16th June, 2021 is how many days? That is 23 days inclusive of both days of occurrence of event complained of and the date of filing in Court. Even if the date of event complained of is excluded, the days are still far beyond the days constitutionally allowed.”
(See 3rd paragraph page 178 of the Record of Appeal)
The lower Court then at 182 of the Record of Appeal held:
“In effect, I find no merit in this suit of the Claimant, it is statute barred and it is therefore dismissed.”
Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal on 20th December, 2021 and predicated same on the following grounds (without their particulars)
GROUND ONE
The learned trial Judge, Honourable Justice Suleiman B. Belgore of the High Court of the Federal Capital Territory, Abuja erred in law when he ruled that the case of the Appellant is statute barred and proceeded in error to dismissed the suit of the Appellant.
GROUND TWO
The learned trial Judge Honourable Justice Suleiman B. Belgore of the High Court of the Federal Capital Territory, Abuja erred in law when he failed to hear and determined the case of the Appellant on the merit and proceeded in error to dismissed the case of the Appellant.
GROUND THREE
The learned trial Judge, Honourable Justice Suleiman B Belgore of the High Court of the Federal Capital Territory, Abuja erred in law by contradicting himself when he opined inter alia that case of the Appellant appeared to be solid and exudes truth and yet pronounced that the case of the Appellant lacks merit and went ahead to dismiss same.
GROUND FOUR
The learned trial Judge, Honourable Justice Suleiman B. Belgore of the High Court of the Federal Capital Territory, Abuja erred in law by failing to resolve one way or the other, the issues which were never in contention between parties and thus occasioned a miscarriage of justice.
GROUND FIVE
The learned trial Judge, Honourable Justice Suleiman B. Begore of the High Court of the Federal Capital Territory, Abuja erred in law when he did not determine the questions as to whether the 1st Respondent was right to have forwarded the name of the 2nd Respondent to the 3rd Respondent as her candidate, having come second in the Gwagwa Ward Councillorship Primary Election, for the Council Election in 2022.
The Record of Appeal was transmitted to this Court on 10th January, 2022. The Appellant’s Brief of Argument dated 17th January, 2022 was filed on the same date. The 1st Respondent’s Brief of Argument settled by Chikaosolu Ojukwu Esq., is dated and filed on 18th January, 2022 while the 2nd Respondent’s Brief of Argument settled by Ebere Nwanya (Mrs) is dated and filed on 19th January, 2022.
On 20th January, 2022, this appeal was heard and learned Counsel adopted their respective Briefs of Argument. The appeal was then reserved for Judgment today.
In the Appellant’s Brief of Argument settled by S. T. Sanni Esq., and M. O. Bada Esq., four (4) issues were formulated for determination of this appeal by the Appellant as follows:
(1) Whether the claim of the Appellant in this suit is statute barred having regards to the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) distilled from Grounds One and Two).
(2) Whether it is not a miscarriage of justice when the Court below refuse to hear case of the Appellant on merit despite unchallenged and overwhelming evidence presented to the Court below (distilled from Grounds Three and Four).
(3) Whether having regards to the time [imitation for having and determination of the suit of the appeal, this Honourable Court invoke its powers under Section 15 of the Court of Appeal Act to hear and determine the suit of the Appellant on the merit (distilled from Grounds Two, Three and Four).
(4) Whether the 1st Respondent lawfully forwarded the name of the 2nd Respondent to the 3rd Respondent as the 1st Respondent nominated candidate in respect of the Gwagwa Ward Councillorship Election for the 2022 Council/Election and whether the 3rd Respondent lawfully published the name of the 2nd Respondent as the 1st Respondent’s nominated candidate in respect of the Gwagwa Ward Councillorship Election for the 2022 Council Election (distilled from Ground Five)
The 1st Respondent formulated a sole Issue for Determination as follows:
“Whether this Honourable Court has the jurisdiction to entertain this appeal, having regards to the facts and circumstances of this appeal. (Distilled from Grounds One, Two, Three, Four and Five of the Notice of Appeal).
The 2nd Respondent, on the other hand submitted the issue for determination thus:
“Whether or not the suit of the Appellant is not statute barred by virtue of the provision of Section 285(9) of the 1999 Constitution (as Amended)?
ARGUMENTS OF COUNSEL
APPELLANT’S ARGUMENTS ON ISSUES
At paragraphs 4.1 – 4.17 of the Appellant’s Brief of Argument, the learned Appellant’s Counsel argued the first Issue for Determination raised by the Appellant to the effect that the learned trial Judge miscalculated the date in which the cause of action arose, as it ought to have been calculated from the date the Appellant became aware of the 1st Respondent’s letter to the 3rd Respondent, and not the date on the letter. He submitted further that the Appellant became aware of the unlawful substitution of his name upon the publication by the 3rd Respondent on 6th June, 2021 and his suit was filed by the Appellant on 16th June, 2021, which amounts to eleven (11) days, which is below the time limit provided by Section 285(9) of the 1999 Constitution. The Appellant’s Counsel also contended that factors such as the JUSUN Strike constitute a Force Majeure, assuming this Court is compelled to calculate the 14 days window from 29th May, 2021 when the 1st Respondent’s letter was received by the 3rd Respondent. He also pointed out at paragraph 4.15 of the Appellant’s Brief of Argument that the Hon. Chief Judge Salisu Garba (as he then was) issued a Practice Direction for the suspension of computation of time from 6th April, 2021 to 14th June, 2021, being the period the Judiciary workers were on strike. He relied on the authorities of EGBE V. ADEFARASIN (2002)14 WRN 57, (1987)1 NWLR (PT. 47) 11; DALHATU M. SAKI V. APC & 2 ORS (2019) LCN AT 13303 CA; JALLCO. V. OWONIBOYS TECH. SERVICE (1995)4 NWLR (PT. 319) AT 53; IGP V. ANPP & ORS (2008) OHR 131 AT 142 CA; ASIMS (NIG) LIMITED V. LOWER BENUE RIVER BASIN DEVELOPMENT AUTHORITY (2002) FWLR (PT. 84) 101 CA; MARWA V. NYAKO (2012)6 NWLR (PT. 1296) 199 and other authorities.
On the Appellant’s issue 2, Counsel to the Appellants submitted at paragraphs 4.18 – 4.25 of the Appellant’s Brief of Argument to the effect that the refusal of the lower Court to hear the case of the Appellant on merit, despite overwhelming unchallenged evidence from the Appellant amounts to a miscarriage of justice. He relied on the authorities of ASAFA FOOD FACTORY LTD V. ALRAINE NIG. LTD (2002) FWLR (PT. 125) 756 SC; JOSEPH V. FIRST INLAND BANK (NIG) PLC (2010) ALL FWLR (PT 504) PG 1487 AT 1513; SKYE BANK PLC V. AKINPELU (2010) ALL FWLR (PT. 526) PG 460 AT 483 PARA A; IBIKUNLE V. STATE (2007) 29 NSCQR 311.
In arguing the Appellant’s issue 3, Counsel to the Appellant submitted at paragraphs 4.26 – 4.34 to the effect that this Court, by virtue of Section 15 of the Court of Appeal Act CAP C36 LFN, has the powers to rehear and determine this suit on the merit, considering the nature of the suit and the time constraint emanating from Section 258(9) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended). In urging this Court to hear and determine this suit in exercise its powers under Section 15 of the Court of Appeal Act, Counsel to the Appellant relied on the authorities of INAKOJU V. ADELEKE (2007)2 MJSC 1 AT PG 89, PARA. B-C, PG 222 PARA, A-B; DAPIANLONG V. DARIYE (2007)27 WRN 1 AT 70 LINES 35-45; OKORONKWO V. FRN (2014)11 WRN 127 AT PG. 151-152 LINES 15-23; OBI V. INEC (2007) 45 WRN 1, (2007) 11 NWLR (PT. 1046) 560 AT PG. 639-640.
In arguing issue 4 raised by the Appellant in this appeal, the learned Counsel to the Appellant submitted at paragraphs 4.35 – 4.53 of the Appellant’s Brief of Argument to the effect that the 1st Respondent’s act of substituting the Appellant’s name with that of the 2nd Respondent as its candidate in a letter sent to the 3rd Respondent is in violation of extant electoral laws, particularly Section 87 of the Electoral Act, and it is also contrary to the guidelines for the conduct of primary elections as contained in the 1st Respondent’s Constitution, hence, injury and wrong has been occasioned on the Appellant, which entitles him to the reliefs he seeks in this suit. Counsel to the Appellant submitted further that the Respondents led no evidence to controvert the evidence presented by the Appellant, thus, the Appellant won the primary elections of the 1st Respondent undoubtedly. He relied on the authorities of LAU V. PDP (2018)4 NWLR (PT. 1608) 60, PDP V. ORANEZI (2018)7 NWLR (PT. 1618) 245; UGWUEGEDE V. ASADU (2018)10 NWLR (PT. 1628) 460; MATO V. HEMBER (2018)5 NWLR (PT. 1612) 258 PG 259 PARA G-H, SENATOR LADO V. CPC & ORS (2011) 48 NSCQR 501 and other authorities.
In conclusion, the learned Appellant’s Counsel prayed this Court to allow this appeal based on the arguments adduced and set aside the judgment of the Lower Court.
1ST RESPONDENT’S ARGUMENTS ON ISSUES
In arguing the 1st Respondent’s sole issue for determination, Counsel to the 1st Respondent submitted at paragraphs 3.1.2 3.1.13 of the 1st Respondent’s Brief of Argument to the effect that the Appellant’s suit at the trial Court was filed four days beyond the 14 days limitation set by Section 285(9) of the 1999 Constitution. He submitted that the date to countenance in a suit such as the instant suit is the date the letter conveying the alleged substitution was submitted and received by INEC, that is on 29th May, 2021, and not the date the Appellant became aware of the alleged substitution. Hence, since the Appellant filed this suit at the Lower Court on 16th June, 2021, that is 19 days from the date the 3rd Respondent received the 1st Respondent’s letter containing the alleged substitution, the Appellant exceeded the 14 days limitation period as provided by Section 285 of the 1999 Constitution. The 1st Respondent’s Counsel relied on the authorities of IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR-53081 (SC); WOHEREM V. EMEREUWA (2004)13 NWLR (PT. 890) PG 398 E-H; BELLO V. YUSUF (2019) LPELR-47918 (SC); EGBUNIKE & ANOR V. ACB LTD (1995) LPELR-1039 (SC); AMADI V. NNPC (2000) LPELR-445 (SC).
The learned Counsel to the 1st Respondent submitted at paragraphs 3.1.14 – 3.1.16 of the 1st Respondent’s Brief of Argument to the effect that the entire suit of the Appellant discloses no reasonable cause of action, and the Appellant’s attempt to introduce a fact as crucial as the date on which the name of the 2nd Respondent was published by the 3rd Respondent at the appeal stage is prohibited, being over 140 days after the suit was filed. He relied on the authorities of OLALOMI IND LTD V. N.I.D.B. LTD (2009)16 NWLR (PT. 1167) 226 AT 303-304; IKENTA BEST (NIG) LTD V. A. G. RIVERS STATE (2008)6 NWLR 613; JITTE V. OKPULOR (2016)2 NWLR (PT. 1497) 542 AT 559 PARA G.
At paragraphs 3.1.17 – 3.1.23 of the 1st Respondent’s Brief of Argument, Counsel to the 1st Respondent submitted to the effect that time fixed by the Constitution is immutable, hence, the argument of the Appellant concerning the applicability of the Court’s Practice Direction to alter the computation of time in consideration of the JUSUN Strike is untenable. He relied on the authorities of MARWA V. NYAKO (2012)6 NWLR (PT. 1296) 199; AMADI & ANOR V. INEC & ORS (2012) LPELR-7831 (SC); BELLO V. YUSUF (2019) LPELR-47918 (SC).
At paragraphs 3.2.1 3.2.7 of the 1st Appellant’s Brief of Argument, Counsel submitted to the effect that this appeal as presently constituted has become academic as the 180 days provided under Section 285(10) of the Constitution lapsed by effluxion of time on 12th December, 2021, thus robbing this Court of the jurisdiction to apply the provisions of Section 15 of the Court of Appeal Act to entertain the reliefs sought by the Appellants. He relied on the authorities of EBEBI V. OZOBO (2022)1 NWLR (PT. 1810) AT 184-185 PARAS G-H; APP V. INEC (2019) LPELR-48465 (CA) AT PAGES 24-25.
In conclusion, Counsel to the 1st Respondent urged this Court to resolve the sole Issue for Determination submitted by the 1st Respondent in favour of the 1st Respondent against the Appellant.
2ND RESPONDENT’S ARGUMENTS ON ISSUES
At paragraphs 4.1 – 4.17 of the 2nd Respondent’s Brief of Argument, Counsel to the 2nd Respondent submitted to the effect that the Lower Court was right in holding that the Appellant’s suit was filed outside the 14 days limitation period stipulated by Section 285(9) of the 1999 Constitution, the Appellant having filed his Originating Summons at the Lower Court on 16/6/2021, 22 days from the submission of the result. Learned Counsel to the 2nd Respondent relied on the authorities of AYOGU V. NNAMANI (2006)11 NWLR (PT. 981) 160; NWANKWO V. YAR’ADUA (2013)13 NWLR (PT. 1263) 81; BELLO V. YUSUF & ORS (2019) LPELR-47918 (SC); A.N.P.P. V. GONI (2012)7 NWLR (PT. 1298) 147; MARWA V. NYAKO (201206 NWLR (PT. 1296) 199; APC V. UMAR (2019)8 NWLR (PT. 1675) 564; PDP V. CPC (2011)17 NWLR (PT. 1277) 485 (PP 506, PARAS C-D, E-F).
At paragraphs 4.18 – 4.25 of the 2nd Respondent’s Brief of Argument, counsel to the 2nd Respondent submitted to the effect that the 180 days provided under Section 285(10) of the 1999 Constitution elapsed on 12/12/2021, hence, this appeal has become academic and this Court has no jurisdiction to invoke its powers under Section 15 of the Court of Appeal Act to entertain the reliefs sought by the Appellant. Counsel relied on the authorities of AGBAKOBA V. INEC (2008)18 NWLR (PT. 119) 489; K.R.K. HOLDINGS (NIG) LTD V. F.B.N. LTD (2017)3 NWLR (PT. 1552) 326 AT 341; N.D.P. V. INEC (2013)6 NWLR (PT 1350) SC 392 AT PP 433-434 PARAS H-B; PLATEAU STATE V. A.G. FEDERATION (2006)3 NWLR (967) 346 AT 419 PARAS F-G; EBEBI V. OZOBO (2022)1 NWLR (PT. 1810) AT 184-185 PARAS G-H. In conclusion, the learned 2nd Respondent’s Counsel urged this Court to dismiss this appeal in its entirety and uphold the judgment of the lower Court.
RESOLUTION OF THE PRELIMINARY OBJECTION OF THE 1ST RESPONDENT
I will consider and determine the Preliminary Objection of the 1st & 2nd Respondents first and if it succeeds, that ends the appeal and if it does not, I will proceed to determine this appeal based on the Issues for Determination formulated by the Appellant’s Counsel.
The learned Counsel to the 1st Respondent at paragraphs 2.1 – 2.2 of page 3 of the 1st Respondent’s Brief of Argument submits to the effect that the Appellant’s issues for determination in this appeal are grossly incompetent as they are infested by the disease called proliferation of issues.
Now I have perused the Issues for Determination in this appeal as formulated by the Appellant. Issues 1, 2 and 3 of paragraph 2.1, 2.2 and 2.3 of the Appellant’s Brief of Argument, issue one is distilled from grounds 1 & 2 of the Notice of Appeal, issue two is distilled from grounds 3 and 4 of the Notice of Appeal and issue 3 is distilled from grounds 2, 3 and 4 of the Notice of Appeal. In other words, by ground 2, issues 1 and 3 are distilled therefrom, ground 3, issues 2 and 3 are distilled therefrom. As a demonstration for the purpose of clarity, an issue can cover more than one Ground of Appeal while a Ground of Appeal can only give birth to one issue. Where a Ground of Appeal gives birth to more issues, then those issues coming from that ground are incompetent. This Court has held in the case of HON SULEIMAN ALHASSAN GWAGWA V HON. MURTALA USMAN KARSHI, UNREPORTED APPEAL NO. CA/ABJ/14/766/2021 DELIVERED ON 3/12/2021 as follows:
“So clearly, by the attitude of this Court and indeed the Apex Court of the land, the principle against proliferation of issues from a single ground is frowned at and viewed with disfavor.
The principle is that a number of grounds could, where appropriate, give birth to a single issue, but a pregnant ground cannot give birth to twins called issues, as done in the instant Appellant’s Brief of Argument.”
See LABIYI V ANRETIOLA & ORS (1992) LPELR 1730 (SC).
In the instant appeal, ground 3 of the Notice of Appeal has given birth to issues 2 and 3 and ground 3 has also given birth to Issues 2 and 3 and ground 4 (4) has given birth to issues 2 and 3 as well. I also noticed that ground two has given birth to twins, i.e. Issues 1 and 3. This is to say, grounds 1,2,3 and 4 of the Notice of Appeal has given birth each to twins or triplets and this is clearly contrary to the rule on proliferation of Issues for Determination in an appeal. And where such proliferation of issues occurs, the Issues for Determination are incompetent and must be struck out.
In the case of STATE V MUHAMMAD (2019) LPELR 48122, the Supreme Court on whether proliferation of Issues for Determination will automatically render the issues so formulated incompetent held as follows:
“I intend to deal with the first issue on the propriety of the lower Court deciding the appeal on the merit despite the fact that the Respondent as appellant who was convicted along with other two accused by the trial Court filed only one ground of appeal but in their briefs of argument raised and argued two issues. According to the learned counsel for the appellant in the present appeal, this is a classic case of multiplicity or proliferation of issues which effectively rendered the issues so formulated incompetent and liable to be struck out along with the sole Ground of Appeal learned counsel anchored his argument on the striking out of the issues on the following cases. See AGU V IKEWIBE (1991) 3 NWLR (pt 180)385 at 401, YAMS (NIGERIA) LTD V GREAT INSURANCE CO. LTD, (2007)14 NWLR (Pt 1055)584, AMODU V COMMANDANT, POLICE COLLEGE MAIDUGURI, (2009)15 NWLR (Pt 1163) 73.”
In the case of YADIS (NIG) LTD V GREAT (NIG) INS. CO. LTD, (SUPRA) also cited by learned counsel to the 1st Respondent, the Supreme Court held:
“It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal even though he can combine two or more grounds of appeal in formulating an issue for determination. This is the principle against proliferation of issues for determination.
See also the decision of this Court in the unreported decision of HON. SULEIMAN ALHASSAN GWAGWA V HON. MURTALA USMAN KARSHI & 17 ORS delivered on 3rd December, 2021 in Appeal No.CA/ABJ/766/2021.
In the instant appeal, I hold the view that issues 1, 2, 3 and 4 of the Appellant for determination of this appeal are incompetent and I so hold. Accordingly, the said issues 1, 2, 3 and 4 are hereby struck out.
On the 2nd leg of the objection of the 1st Respondent as to whether the suit of the Appellant is statute barred, at paragraphs 3.1.2 – 3.1.13 of the 1st Respondent’s Brief of Argument, learned Counsel submits that the suit of the Appellant at the trial Court leading to the instant appeal is statute barred in that the suit was filed beyond the 14 days prescribed by S.285 (9) of the 1999 Constitution of the FRN (as amended).
The 2nd Respondent, at paragraphs 4.1 – 4.17 of his Brief of Argument also posits that the Appellant’s Originating Summons filed on 16th June, 2021 was statute barred as it was filed outside the 14 days mandatory statutory timeline prescribed by Section 285 (9) of the 1999 Constitution of the FRN (as amended). The Appellant, on the other hand, at paragraphs 4.1 – 4.16 of his Brief of Argument, learned Counsel submits on his behalf to determine whether if the cause of action is statute barred, the Court is to consider the Writ of Summons and Statement of Claim, and in this case, the Originating Summons and Affidavit in Support. He then refers me to paragraphs 10,11,12 and 13 and Exhibit G dated the 25th day of May, 2021 to the 3rd Respondent. Learned Counsel then posits that it is not in doubt that the 3rd Respondent was only in receipt of the said letter, Exhibit G transmitting the name of the 2nd Respondent to it on the 29th May, 2021 and that the Appellant became aware of the anomalies when the decision of the 1st Respondent to substitute and submit the name of the 2nd Respondent instead of his name became known to him vide publication by the 3rd Respondent. According to the Appellant’s Counsel, that time start to count after the Appellant became aware of the wrong.
Learned Counsel to the Appellant submits also that the provision of the Constitution must be construed liberally so as to best carry out their obvious intention and ends. He contends that S.285(9) of the 1999 Constitution by its commencement provision i.e. “Notwithstanding anything to the contrary in this Constitution…” depicts a mischief rule of interpretation which gives credence to the fact that except where circumstances beyond a litigant’s control occur.
Learned Counsel to the Appellant also refer to the JUSUN strike which is one of the circumstances envisaged by the draftsman in S.285(9) of the Constitution and this also constitutes a force majeure.
Now after a painstaking exercise and scrutiny of the processes filed by the Appellant at the lower Court, i.e. the Originating Summons and Affidavit supporting the Originating Summons, it is correct that the Originating Summons and other processes were filed on 16th June, 2021. Then by paragraphs 10, 11, 12 and 13, the Appellant avers to facts of substitution of his name as winner of the Primary Election of the 1st Respondent wherein the 1st Respondent instead of forwarding his name to the 3rd Respondent, forwarded the name of the 2nd Respondent by virtue of the letter dated 25th May, 2021, Exhibit G.
The learned Counsel to the Appellant submits at paragraph 4.4 of the Appellant’s Brief of Argument that the Exhibit G, the letter of the 1st Respondent dated 25th May, 2021 was received by the 3rd Respondent on 29th May, 2021. The question therefore is when did the Appellant’s cause of action occur? Assuming that the letter of the 1st Respondent dated 25th May, 2021 was received, delivered or acknowledged by the 3rd Respondent on 29th May, 2021, the cause of complaint or grievance of the Appellant crystallizes on the 29th May, 2021 and not when the Appellant became aware or when the letter of the 1st Respondent was written and dated. If that is the case and certainly, the evidence on record established that fact i.e. Exhibit G, while this suit was filed on 16/06/2021. By simple arithmetic, 29th May, 2021 to 16th June, 2021, the 14 days period ought to terminate on either the 11th or 12th day of June, 2021. In other words, the 14 days period to file the instant suit before the lower Court will expire on either the 11th or 12th of June, 2021. However, on the face of the processes, i.e. the Originating Summons, the suit was filed on 16/06/2021, beyond the period recognized by S.285(9) of the Constitution. Section 285(9) states as follows:
“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.”
By the evidence of the Appellant filed at the Lower Court, especially paragraph 10 – 13 in support of the Originating Summons, whether exhibit G is received from the date of writing the letter by the 1st Respondent to the 3rd Respondent or when Exhibit G was transmitted to the 3rd Respondent and acknowledged on 29th May, 2021 as admitted by the Appellant’s Counsel in their Brief of Argument, the 14 days period had elapsed to institute the instant action or the suit was instituted outside the 14 days period.
For the avoidance of doubt, the occurrence of event in the instant case of the Appellant was the 29th day of May, 2021.
In the recent case of MOHAMMED SANI MUSA VS DAVID UMAR & ORS, (2020)11 NWLR (PT. 1735) delivered on 14th June, 2019 in Appeal No.SC/405/2019, the Apex Court held:
“Where the Plaintiff asserts that he won the primary of his political party but the name of a candidate that lost was sent to INEC, cause of action for the purpose of calculating 14 days stipulated in Section 285 (9) of the Constitution will accrue from the date of submission of the name to INEC.”
The Supreme Court further held in the case of SAKI VS APC (2020)1 NWLR (PT. 1706) Page 515 as follows:
“In a plethora of recent decisions of this Court, we have held that where the plaintiff contended that he won the primary and that another person’s name was later submitted instead of his own, his cause of action crystallizes on the date the name of the other party is submitted to INEC. The rationale for this position is that the plaintiff who was satisfied with the conduct of the primary and who claims that he won, has no complaint against anyone and therefore no reason to seek redress until he discovers that someone else’s name has been submitted.
Further, the provision of Section 285 (9) of the 1999 Constitution (as amended) is clear and unambiguous. It has not made knowledge on the part of the claimant a pre-condition to filing the action. The claimant’s knowledge or awareness is therefore immaterial in determining when the limitation period begins to run. See BELLO V YUSUF (2019) 15 NWLR (Pt 1695)250.
Thus, as the Appellant’s Counsel submits that the learned trial Judge erred in his mathematical arena because the Appellant became aware of the unlawful substitution on the 6th of June, 2021 and the suit was filed on 16/06/2021, about 11 days after. The views of the learned Counsel, unfortunately, is not the position of the law when applying limitation period as envisaged by S. 285(9) of the 1999 Constitution (as amended).
In the instant appeal, by the affidavit of the Appellant himself at the lower Court and the admission of the Appellant that the letter of the 1st Respondent forwarding the name of the 2nd Respondent to the 3rd Respondent was received by the 3rd Respondent on 29th May, 2021, the cause of action accrued on that date. Whether the Appellant is aware or not, the limitation period by virtue of Section 285(9) of the Constitution begins to run and it must be commenced within 14 days from the 29th May, 2021. Further, the question of JUSUN strike which the Appellant’s Counsel posits that it constitutes a force majeure and that the Appellant filed within time is not helpful to the Appellant. Section 285(9) of the 1999 Constitution is clear and this Court have no powers to interpret the law otherwise by importing into the statute words that were not used or contemplated by the legislature.
In the final analysis, I hold the view that the learned trial Court was right when it declined jurisdiction on the basis that the suit is statute barred. The findings of the learned trial Judge cannot be faulted in the circumstance of this case.
Thus, the Preliminary Objection of the 1st and 2nd Respondents succeeds. Consequently, the appeal is hereby dismissed.
The decision of the lower Court in Suit No. FCT/HC/CV/1111/2021 delivered on 9/12/2021 by Suleiman B. Belgore, J. is hereby affirmed.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, DANLAMI ZAMA SENCHI, JCA.
I agree with his reasoning and conclusion that the Preliminary Objection of the 1st and 2nd Respondents succeeds, and the Appellant’s appeal dismissed.
The decision of the lower Court in Suit No. FCT/HC/CV/1111/2021 delivered on 9th day of December, 2021 by SULEIMAN B. BELCORE, J., is hereby affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the leading judgment just delivered by my learned brother, Danlami Zama Senchl, JCA, and I agree with his reasoning and conclusion that the lower Court arrived at the correct decision when it declined jurisdiction to entertain the action on the ground that it is statute barred. Therefore, having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties, I equally join in dismissing the appeal and on the same terms as set out in the leading judgment. I abide by the consequential order made in the leading judgment.
Appeal dismissed.
Appearances:
S.T. Sanni, Esq., with him, Temitayo Osideko, Esq., and M.O. Bada, Esq. For Appellant(s)
Chikaosolu Ojukwu, Esq. with him, Covenant E. Ashiri, Esq. – for the 1st Respondent.
Lemal Kuthum Muizu, Esq. – for the 3rd Respondent. For Respondent(s)
