Alhaji Jibrin Bala Guna Alhassan V. Dr. Muazu Babangida Aliyu & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
OHN INYANG OKORO, J.C.A.
At the Federal High Court, Kaduna, the Appellant herein, by an Originating Summons dated 12th November, 2007, presented the following questions for determination:-
“1. WHETHER having regard to the provisions of section 34(2) of the Electoral Act, 2006, the 2nd Defendant can without adducing cogent and verifiable reason change and or substitute the name of the Plaintiff for the 1st Defendant as the People’s Democratic Party Governorship candidate in the 14th April, 2007 Election in Niger State.
- WHETHER having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by section 34(2) of the Electoral Act, 2006 by the 2nd Defendant, the 3rd Defendant can act on the name of the 1st Defendant as replacement of the Plaintiff s.
- WHETHER having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by section 34(2) of the Electoral Act, 2006 by the 2nd Defendant, the Plaintiff is not the duly nominated candidate for the 14th April, 2007 Gubernatorial Election in Niger State under the platform of the 2nd Defendant.
- WHETHER having regard to the provision of Article 17.2(b) of the Constitution of the Peoples Democratic Party and Articles 13(a) – (g), 14 (a) – (k), 15(1) (a) – (e) (2) 16 (a) – (f), 18(a) & (b) and 19 its Electoral Guidelines for primary Election 2006, the 1st Defendant who did not contest the Gubernatorial Primary Election could be changed and or substituted by the 2nd Defendant for the Plaintiff who won the said primary Election by 3,575 lawful votes.”
The Appellant, who was the plaintiff therein sought the following reliefs:
(a) A DECLARATION that the plaintiff was the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the platform of the 2nd Defendant being the candidate who won the majority of 3579 lawful votes at the Primary Election conducted by the 2nd Defendant on the 13th day of December, 2006 and whose name was submitted by the 2nd Defendant to the 3rd Defendant.
(b) A DECLARATION that the 1st Defendant who did not contest the Primary Election aforesaid as mandated by Article 17.2 (b) of the guidelines for Primary Election 2006 issued pursuant thereto, was not qualified to be nominated by the 2nd Defendant as its Gubernatorial candidate in the 14th April, 2007 Governorship Election in Niger State.
(c) A DECLARATION that the 1st Defendant who did not contest the Primary Election aforesaid was not the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the platform of the People’s Democratic Party, the 2nd Defendant.
(d) A DECLARATION that by virtue of the provisions of section 32(5) of the Electoral Act, 2006 it is only a court of law that can disqualify the Plaintiff who was duly nominated as the Governorship candidate of the 2nd Defendant in the 14th April, 2007 Governorship Election in Niger and whose name and particulars were submitted by the 2nd Defendant to the 3rd Defendant as such.
(e) A DECLARATION that the option of changing or substituting the Plaintiff with the 1st Defendant is only exercisable by the 2nd Defendant in strict compliance with the provisions of section 34(2) of the Electoral Act, 2006.
(f) A DECLARATION that the sudden substitution of the Plaintiff s name with the 1st Defendant’s lacked any merit and constitutes a deliberate and fragrant infraction of the provision of section 34(2) of the Electoral Act, 2006.
(g) A DECLARATION that the nomination of the 1st Defendant as the Gubernatorial candidate of the Peoples Democratic Party at the said Election and the acceptance thereof by the 3rd Defendant is VOID AB INITIO
(h) A DECLARATION that the Plaintiff, whose name was unlawfully and unjustifiably removed as the Governorship candidate of the 2nd Defendant in the 14th April, 2007 Governorship Election remains the candidate of the Peoples Democratic Party in the eyes of the law.
(i) IN THE PREMISES OF THE FOREGOING, AN ORDER directing the 1st Defendant to immediately vacate the coveted seat of the Governor of Niger State.
(j) A FURTHER ORDER directing the relevant authorities to immediately inaugurate and or swear in the Plaintiff as the Executive Governor of Niger State.
As would be expected, the Respondents filed their respective counter affidavit in opposition to the Originating summons. In addition, the 1st and 2nd Respondents filed Notices of preliminary objection to the Originating summons on similar grounds to wit: (1) that the 3rd Respondent being a Public Officer is protected by the Public Officers Protection Act, (2) that the 1st Respondent having been sworn in as Governor of Niger State, the action against him is barred by the immunity clause in section 308 of the 1999 Constitution and (3) that the present suit not being an election petition challenging the return of the Respondent as the Governor of Niger State cannot be maintained since the 1st Respondent has been elected and sworn into office as Governor of Niger State.
At the hearing, both the Originating Summons and Notices of Preliminary objection were contemporaneously argued together. The learned trial judge, in a considered Judgment, upheld the preliminary objection and struck out the Originating Summons. Dissatisfied with the stance of the Learned Trial Court, the Appellant filed Notice of Appeal containing five grounds on 29th February, 2007. Out of these five grounds of appeal, the Appellant has formulated three issues for the determination of this appeal. The issues are:
(a) Whether the Public Officers Protection Act protect the substitution of the Appellant with the 1st Respondent in the light of the peculiar circumstance of this case.
(b) Whether the 1st Respondent is protected by the immunity provided in section 308 of the 1999 Constitution from an Action challenging his purported Election and assumption of office of the Governor of Niger State as a PDP candidate.
(c) Whether the learned trial Court had the Jurisdiction to hear and determine the Originating summons filed before it.
The 2nd Respondent, in his brief has not formulated any issues but has adopted the three issues as distilled by the appellant. The 3rd Respondent has distilled similar issues but couched differently. They are as follows:
(a) Whether the 3rd Respondent herein is protected by the Public Officers Act?
(b) Whether the 1st Respondent having been sworn in as the Executive Governor of Niger State enjoys Constitutional immunity against civil and criminal proceedings?
(c) Whether the Federal High Court has jurisdiction to hear and determine the Appellant’s Originating Summons?
The Appellant filed two reply briefs; One in respect of the 1st Respondent’s brief and second, in respect of the 2nd and 3rd Respondent’s briefs of argument. I shall determine this appeal based on the three issues formulated by the Appellant.
On the 1st issue, the learned Senior Counsel for the appellant submitted that where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action relying on the cases of Abiodun and 11 Ors Vs. Attorney General Federation (2007) 15 N.W.L.R. (Pt. 1057) 359 and CBN and Ors Vs. Okojie (2004) 10 N.W.L.R. (Pt. 882) 488. That the continuing injury in the instant case is the foreclosure of the Appellant’s right to participate in the Government of Niger State as the sponsored candidate of the Peoples Democratic Party. It was a further opinion of the Learned Senior Counsel for the Appellant that the injury and or deprivation arising from the infraction of the Appellant’s guaranteed right as provided by Article 13 of the African Charter on Human and Peoples Right is of a continuing nature and was subsisting as at the time of the Commencement of the suit. Also, that where there is a conflict between the provisions of a statute such as the Public Officers Protection Act and the provisions of a statute with international flavour as the African Charter on Human and People’s Right, the later will prevail. He cited the case of Abacha Vs. Fawehimi (2006) 6 N.W.L.R. (Pt. 660) 228, Abiodun Vs. Attorney General Federation (Supra).
The learned senior counsel further contends that the Public Officers Protection Act is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification placing reliance on the cases of Nwankwere Vs. Adewunmi (1966) 1 All N.L.R. 119, Lagos City Council Vs. Ogunbiyi (1969) All N.L.R. 297, Offoboche Vs. Ogoja Local Government (2001) 16 N.W.L.R. (Pt. 739) 458.
Moreover, that the finding and conclusion of the learned trial judge that the Appellant failed to establish that the 3rd Respondent acted outside the scope of its duties as far as the substitution of the 1st Respondent is concerned is in total disregard of the statutory duty incumbent on the 3rd Respondent in allowing a political party to nominate another candidate not later than 60 days before the date of election to act in strict compliance with sections 34 and 36 of the Electoral Act. He concluded that where a public officer has been shown to have acted in total disregard of statutory provisions and not within any statutory or legal authority, the protection afforded by the Public Officers Act is unavailable to him. He relied again on the following cases:- Ibeto Cement Company Ltd Vs. Attorney General of Federation (2008) 1 N.W.L.R. (Pt. 1069) 470, CBN Vs. Okojie (2004) 10 N.W.L.R. (Pt. 882) 488 and Gomes Vs. Punch Nig. Ltd (1999) 5 N.W.L.R. (Pt. 602) 303. He urged this Court to resolve this issue in favour of the Appellant.
It is however the submission of the learned Senior Counsel for the 1st Respondent on the first issue that the complaint and cause of action of the Appellant is not a continuing one as alleged by the Appellant. That what the Appellant describes as the continuing injury or damage he suffered is the concomitant effect of the injury or damage. He cited the following cases to buttress that submission:-
NEPA Vs. Olagunju (2005) 3 N.W.L.R. (Pt. 913) 602, Chief Ademiba Afolayan Vs. Oba Joshua Ogunrinde and Ors (1990) 1 N.W.L.R. (Pt. 127) 369, Curey Vs. Metropolitan Borough of Bermondsey (67 J.P. 447) Dr. Olaosebikan Vs. Williams and Anor (1996) 5 N.W.L.R. (Pt. 449) 437 among others.
On the submission that the 3rd Respondent cannot claim to be protected by the Public Officers Protection Act in that the acts done by it were not done in good faith and constitutes acts in gross abuse of office, the 15th Respondent’s Senior Counsel submitted that there is no evidence whatsoever in support of the said submission. That it has not been shown that the 3rd Respondent acted for its own benefit. Rather, that it acted in the colour of its office and in execution of its duty relying on the case of Bala Adedire and 6 Ors Vs. The Caretaker Committee of Ife Divisional Council and Anor (1963) 1 All N.L.R. 39 at 49 – 50
Learned Senior Counsel concluded on this issue that all the arguments by the Appellant in his brief on the merit of the case are futile and cannot be considered. That the issue is not whether or not the plaintiffs case is meritorious. That the real issue is whether or not the Appellant’s case is now bare and empty and cannot be pursued having regard to the application of the Public Officers Protection Act. He cited NEPA Vs. Olagunju (Supra), Emiator Vs. The Nigeria Army and Ors (1999) 12 N.W.L.R. (Pt. 631) 362. On the submission that the African Charter on Human and Peoples Right (Ratification and Enforcement Act 1990) will override municipal laws, he argued that where a person fails to follow procedural measures for the actualization of his right, he cannot be heard to say that the African Charter is greater than municipal laws. He urged the court to resolve this issue against the appellant.
It was also the submission of learned counsel for the 2nd Respondent on the first issue that section 2(a) of the Public Officers Protection Act protects the activities or acts done in respect of neglect or default in the execution of the duties of such public officers. That provided they do not carry out any act outside the usual confine and scope of their functions, they are fully protected. That one of such functions of the 3rd Respondent is to receive notice of substitution of candidates by political parties and to act on same. That, perchance the officer is negligent or in default by not confirming whether the substitution was properly done or not by the respective political parties, such public officer would only incur the wrath of the law if sued within three months of the occurrence of the act or default. He submitted that on the instant case, the Appellant failed to highlight the statutory duty which the public officers allegedly breached. He referred to the case of Ibrahim – Ohida Vs. Military Administrator, Kogi State (2000) F.W.L.R. (Pt. 12) 2107.
On the issue that the wrong complained of by the appellant was a continuing one, he opined that the submission is erroneous and submitted that it is unimaginable how the letters of substitution and withdrawal of 5th February, 2007 and 13th February, 2007 respectively would have been effected by the 3rd Respondent had the Appellant’s protest been treated and accepted. On the cases cited by the Appellant on continuing injury, he submitted that they are inapplicable because the Appellant knew about the alleged injury and did nothing beyond the purported protest letter and that he is caught by the equitable doctrine of standing by and laches. On the submission regarding the African Charter on Human and Peoples Right overriding the Public Officers Act, he argued that no law which is in conflict with the principles of Equity can stand.
Learned Counsel submitted finally, that by the fact of open declaration of support for the 1st Respondent’s candidature at the Governorship election, and canvassing for votes in his favour at the campaign rallies organised by the party subsequent upon his substitution as stated clearly in the counter affidavit before the lower Court, the Appellant had clearly waived his right to complain that his substitution was wrongful. He cited the case of Mkpedem Vs. Udo (2001) F.W.L.R. (Pt. 66) P. 827. He urged the court to resolve this issue against the appellant.
The learned senior counsel for the 3rd Respondent made identical submissions as that of the 1st and 2nd Respondents but added that the Public Officers Protection Act is not unconstitutional because it does not deprive a party the right of access to court but merely regulates that right. Thus the reference to the African Charter on Human and Peoples Right is of no consequence. He cited the case of Kolo Vs. Attorney General Federation (2003) F.W.L.R. (Pt. 184) 349 at 353. He also urged this court to resolve this issue against the appellant.
The Appellant had filed two reply briefs which are to a large extent repetition of arguments already contained in the main brief. However, they shall be referred to in the course of this judgment if need be.
In spite of the volume of arguments made in this issue, one salient question needs to be asked and answered. And that is whether the Public Officers Protection Act cap 379, Laws of the Federation of Nigeria 1990 avails the 3rd Respondent in the circumstance of this case. The 3rd Respondent is the Independent National Electoral Commission. Section 2(a) of the said Act which is in the front burner states:-
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect .
(a) The action, prosecution, or proceeding shall not be or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
For purpose of clarity, the word “person” used in the above section has been legally defined as not limited to natural persons or human beings only but also admits and includes artificial persons such as corporate sole, company or body of persons corporate or incorporate. Thus the 3rd Respondent INEC is one of such persons as envisaged by the section. See Mkpedem Vs. Sunday Otong Udo & 4 Ors (2001) F.W.L.R. (Pt. 66) 827, Offoboche Vs. Ogoja Local Government (2001) F.W.L.R. (Pt. 68) 1051, Ibrahim Vs. Judicial Service Commission (1998) 14 N.W.L.R. (Pt. 548) 1. It is therefore without equivocation that the 3rd Respondent is a public officer, even as none of the parties contended otherwise. The rationale for this piece of legislation is to protect a public officer against state claims and not to shield him from prosecution at all. For a defendant to avail himself of the protection provided by section 2 (a) of the Act, he must, while acting as a public officer, have done something whether by way of action, deed or neglect in the discharge or execution of his public duties for which he is sued and in respect of which he may seek protection under the law as a defense to the plaintiff’s case against him if the action was not instituted within three months next after the acts, neglect or defaults complained of. See Ibrahim Ohida Vs. Military Administrator of Kogi State (2000) 12 N.W.L.R. (Pt. 680) 24, Momoh Vs. Okewale (1977) 6 S.C. 81, Yare Vs. Nunku (1995) 5 N.W.L.R. (Pt. 394) 129.
It must not be mistaken that the Public Officers Protection Act automatically bars actions against a public officer. No, it does not. Rather it merely provides that an action may be statute barred if the action is taken out after the expiration of three months after the act or neglect. In the instant appeal, did the 3rd Respondent do or neglect to do anything which would entitle it to plead protection under the Act? By receiving a letter substituting the Appellant with the 1st Respondent from the 2nd Respondent, and acting on the said letter, the 3rd Respondent, no doubt can be said to have done some act which would entitle it to the protection afforded by the Act. It should be noted however that for a public officer to claim the protection so afforded, he must have acted within the confines of his office and within the parameters set for him under the Law. Where a public officer flagrantly disregards the dictates of his office and goes out on a frolic of his own, he cannot claim protection under the Act.
In order to determine whether the action against the 3rd Respondent is statute barred or not there is the need to find out when the cause of action accrued to the appellant.
The phrase “cause of action” has been defined as:-
“every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the Defendant would have a right to traverse. It is the fact which establishes or gives rise to a right of action. It is the factual situation, which gives a person right to judicial relief.”
See Ogbah Vs. Bebde Divisional Union (2001) F.W.L.R. (Pt. 63) 25 at 27.
Where there is in existence an action or omission which entitles one to sue another for redress in a court of law and there is in existence a person who can sue and another to be sued, there is in my opinion the existence of a cause of action and time begins to run when there is in existence a person who can sue and another who can be sued and all the facts have occurred which are material for proof to entitle a plaintiff to the relief sought. In the instant case, I am of the view that the cause of action started to run with the letter of substitution dated 5th February, 2007 and that of withdrawal dated 13th February, 2007. As at these two dates, the Appellant knew his right to contest the Governorship election in Niger State had been forcibly taken away from him and given to the 1st Respondent and that he had suffered some injury. But what baffles me is that apart from writing a letter of protest, he chose to do nothing about it until after the 1st Respondent had been elected and sworn into office on 29th May, 2007 before he thought of pursuing that right. Even at that he waited till 7th November, 2007 in order to activate the machinery of justice to reclaim his candidature which in my opinion was no longer available having been used up by the 1st Respondent. On this issue, the learned trial judge said:-
“There is no gain saying that the cause of action in this case accrued from the letters of substitution and withdrawal respectively dated 5th February, 2007 and 13th February, 2007 while the present suit was filed only on the 7th November, 2007 a period of about eight months. The effect of statute of limitation is that when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and willingly instituted after the expiration of the prescribed period. And it is beyond any peradventure that the present suit was instituted after three months of the accrual of the cause of action.”
Learned Counsel for the Appellant had argued extraneously that the injury suffered by the appellant is an injury of a continuing nature. The Respondents had however submitted that the incident which the appellant describes as continuing cause of the complaint or injury is the concomitant effect of the damage and/or injury. In his reply brief to the 1st Respondent’s brief, the learned Senior Counsel to the appellant submitted at page 2 thereof as follows:-
“The unlawful act of inventing a fictitious and non existent “withdrawal” in order to deprive the Appellant of his vested right and the damage caused thereby has not abated as the Respondents continue to represent that the Appellant withdrew as a candidate for the said Gubernatorial Elections.”
Now can it be said that even as at today, because the 1st Respondent occupies a position over which the Appellant had acquired a vested right, the injury done to him is still of a continuing nature which would make his suit instituted at the Federal High Court not caught by the provisions of the Public Officers Protection Act? I ask this question because where the injury complained of is a continuing one, time does not begin to run for the purpose of the application of a limitation law until the cessation of the event leading to the cause of action. In other words “Continue of injury” means the continuance or repeat of the act which caused the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury. In Olaosebikan Vs. Williams (1996) 5 N.W.L.R. (Pt. 449) 437 at 456, Salami, JCA quoting Dickson, J has this to say:-
“The issue is very well illustrated by the dictum of Dickson J, in Michael Obiefina Vs. Alexander Okoye (1961) All N.L.R. 357. At pages 360 and 362 Dickson J, said
Continuance of injury or damage means Continuance of the legal injury, and not merely continuance of the injurious effects of a legal injury. The continuance of the injurious effects of an accident is not a continuance of the injury or damage within the meaning of the Public Authorities Protection Act 1893: 20 Halsbury (2nd Edition) page 771. . . . . . . . . . . . . .. With regard to the Construction of those words, I am clearly of opinion that the matter is governed by the decision of the Court of Appeal as far back as 1903, in the case of Curey Vs. Metropolitan Borough of Bermondsey (67 J. P. 447), confirming the judgment of Channel J., in that same case, reported in the same volume at page 111. Lord Halsbury, L. C. in giving judgment in the court of Appeal in that case, affirming the judgment of channel J, said:-
“It is manifest that ‘continuance of the injury or damage’ means the continuance of the act which caused the damage. It was not unreasonable to provide that, if there was a continuance of an act causing damage, the injured person should have a right to bring an action at any time within the months of the ceasing of the act complained of.”
I concur. I have nothing to add.” For me, I agree as that is the correct interpretation of that section. Thus, the act which caused the injury to the Appellant was the alleged substitution of 5th February, 2007. There is no evidence that there was any other act of substitution after 5th February, 2007. Therefore, the cause of action started to run on 5th February, 2007 when the act of substitution occurred which also caused the injury to the Appellant.
Therefore, filing the Originating summons almost nine months after the cessation of the act complained of clearly offends section2 (a) of the Public Officers Act Cap. 379, 1990. But that is not all. There are still more hurdles to cross.
One other issue is that the Public Officers Protection Act is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office. An abuse of office is the use of power to achieve ends other than those for which power was granted. If the public officer acts maliciously, the Act will certainly not avail him. See Lagos City Council Vs. Ogunbiyi (1969) All N.L.R. 297, Offoboche Vs. Ogoja Local Government (Supra). Whether or not the public officer abused his office or acted maliciously, is a question of fact for which credible evidence must be led to prove same. The findings and conclusion of the Learned Trial Judge on this issue is as follows:-
“In any event the onus is on the Plaintiff who assert that the 3rd defendant acted outside the colours of its duty in the said substitution of candidate to so prove. In the instant, the plaintiff failed to establish that the 3rd defendant acted outside the scope of its duties as far as the substitution of the 1st defendant is concerned.”
As it is, there is no appeal against this finding of the learned trial judge. So, it stands. As was pointed out by the learned Senior Counsel for the 1st Respondent and I agree with him, there is no shred or scintilla of evidence by the Appellant before the trial court that the 3rd Respondent acted beyond the scope of his office or maliciously or even with no semblance of legal justification. The arguments made by P.I.N. Ikweto, SAN in the Appellant’s brief, and in his oral submission should have made so much difference, if not all the difference in this appeal, if they emanated from the head and mouth of the Appellant. Learned Senior Counsel tried to show in his brief how the 3rd Respondent acted without legal justification. These are facts which ought to have been laid before the trial court. It is not the place of counsel to give evidence in the guise of making an address. See Ugwu Vs. Ararume (2007) 12 N.W.L.R. (Pt. 1048) 367 at 445 paragraph E – F. In the circumstance of the case, I am of the view that the learned trial judge was right to hold that this case was statute barred. Where an action is statute barred as in the instant case, a plaintiff who might have had a cause of action looses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed. See Emiator Vs. The Nigerian Army & Ors (Supra). The issue in this appeal is not whether or not the Appellant as plaintiff has a good case or even whether or not he has a cause of action. I think the real issue is, whether the Appellant’s case has now become bare and empty and can no longer be pursued having regard to the application of the Public Officer’s Protection Act.
The reference by the learned senior counsel for the Appellant to the African Charter on human and Peoples Right, to me, is of no moment. A statute like the Limitation Act which prescribes the procedure for invoking the exercise of judicial powers cannot be said to be in conflict with the African Charter on Human and Peoples Right. There is nothing in section 2 (a) of the Limitation Act which robs the Appellant of his right as entrenched in the charter. At least the Limitation Act has not been held to be unconstitutional. See Kolo Vs. Attorney General Federation (2003) F.W.L.R. (Pt. 184) 349. Where any statute is consistent with the organic law of the land, the Constitution, the reference to the African Charter on Human and Peoples Right is an attempt to elevate the charter above our Constitution. This can not be and the court will not assist the appellant to do so. Being a product of an International Treaty or having International flavour, it could be said that it has an edge over our local enactments but certainly, not the Constitution of Nigeria. Therefore, any law which is not inconsistent with our Constitution cannot be struck down on the flimsy reason that it offends against the charter. See Abacha Vs. Fawehinmi (2000) 6 N.W.L.R. (Pt. 660) 228. The Appellant may have had a good cause against the Respondents but, honestly, he is not only caught up by the limitation period contained in section 2(a) of the Public Officers Protection Act, but also by the Equitable doctrine of standing by the laches. Quite unfortunate.
As can be glaringly seen, I have carefully avoided the lengthy arguments on the merit of the case. This is so because there is no issue on the merit of the case before us. That is to say, the issue as to whether the Appellant was properly substituted or not, is not before us. May be that will be for another day. The scenario of the present appeal is clearly distinguishable from the judgment referred to in the cases of Amaechi Vs. INEC (Supra), Ugwu Vs. Ararume (Supra) in view of the conduct of the Appellant himself. In the two cases above, Amaechi and Ararume, the aggrieved parties immediately sought relief in court before the governorship election were conducted on the 14th April, 2007 but in the instant case, the appellant did not challenge his substitution in court until the election was concluded and the 1st Respondent sworn into office and waited for about nine months before so doing. As I said earlier, all the arguments on the merit of the case are hereby discountenanced as they are of no moment. In the circumstance, this issue is hereby resolved against the Appellant.
The second issue in this appeal is whether the 1st Respondent is protected by the immunity provided in section 308 of the 1999 Constitution from an action challenging his election and assumption of office of the Governor of Niger State as a PDP candidate. Whereas the Appellant’s Senior Counsel submits that the immunity does not avail the 1st Respondent, the Learned Senior Counsel and Counsel for all the Respondents think otherwise. There is no doubt that the action which gave birth to this appeal was instituted by the Appellant to challenge the process through which the 1st Respondent became the PDP candidate for the Governorship Election in Niger State, his assumption of office of Governor of Niger State including his right to continue to remain in the office as such. I think this is a convenient point to ask this question – Is this suit a civil matter, pre-election matter or an election matter? The answer to this question will certainly determine whether section 308 of the 1999 Constitution which confers immunity on the 1st Respondent applies. Let me say here that this suit could have qualified as a pre-election matter if it had not gone a step further to question the return of the 1st Respondent as the duly elected Governor, and also praying the Court not only to nullify the said election, but to declare him (the Appellant) as the duly elected Governor and directing that he be sworn in as such. I think it is a civil matter masquerading as an election matter. Or is it the case of” the body of Esau but the voice of Jacob?” If the matter is an election matter as the Appellant would want us to believe, then it ought not to have been instituted at the Federal High Court as in this case. I say so because of the provision in section 285(2) of the Constitution of the Federal Republic of Nigeria, 1999. The section states:-
“285 (2) – There shall be established in each state of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any other court or tribunal have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house” (italics mine for emphasis).
Again, Section 140(1) of the Electoral Act, 2006 provides that:
“140 (1) No election and return at an election under this Act shall be questioned in any matter other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party”
From both the Constitutional and Statutory provisions cited above, it is crystal clear that the Appellant, questioning the undue return of the 1st Respondent ought to have ventilated his claim at the Election Petition Tribunal. Definitely, not at the Federal High Court as in this case. And that could have been by a petition. Definitely, not through an Originating Summons. If the Appellant had filed the first leg of his complaint i.e. relating to his substitution at the High Court or Federal High Court before the 1st Respondent was elected and sworn in as Governor, it seems to me, that, all things being equal, he would have succeeded in view of the Supreme Court’s decision in Amachi Vs. INEC (Supra). But where as in the instant case the Appellant sought to remove the Governor by an originating summons filed before the Federal High Court, it seems to me that the provision of section 308 of the Constitution protects the Governor from such a civil proceedings. This is so as I have held that this suit is not an election petition but a pure civil matter at the time it was instituted. See Ejura Vs. Idris & 2 Ors (2006) 4 N.W.L.R. (Pt. 971) 538.
I need to say here that election petitions are special proceedings completely divorced and separated from civil proceedings and consequently, a Governor is not immune from legal proceedings against him in respect of an election petition see AD Vs. Fayose (2004) 8 N.W.L.R. (Pt. 876) 639, Obih Vs. Mbakwe (1984) 1 S.C.N.L.R.192. The clear and unambiguous provision of section 308 of 1999 Constitution provides for an absolute bar to civil and criminal suits against Governors while in office. Where there are such suits, they should not be dismissed but struck out pending when they vacate office. As was rightly held by the Apex Court in Rt Hon. Rotimi Chubuike Ameachi Vs. INEC & 2 Ors (2007) 9 N.W.L.R. (Pt. 1040) 504, section 308 of the Constitution is not designed to deny a citizen of this country his right of access to the Court. Rather, it is a provision put in place to enable a Governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and difficulty which may arise if he is being constantly pursued and harassed with court processes of a civil or criminal nature while in office. The Supreme Court further held in that case that to hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the Court. Moreover, that it is only in a case where the deferment of the plaintiff s right of action is not likely to destroy the Res in the suit that section 308 can be invoked.
The sum total on this issue is that section 308 of the Constitution protects sitting Governors from civil and criminal prosecutions while in office. But that where the action is an election matter or an election related matter which has to do with the tenure of the office for which the Res would have been depleted at the end of the tenure, section 308 cannot be invoked as that would create injustice for the plaintiff. I do not think the section was meant to put anybody at any disadvantaged position. In the instant case, had the Appellant filed his suit seeking to question the election of the 1st Respondent at an election petition Tribunal via a petition, section 308 of the Constitution would not avail the 1st Respondent. Had he also filed an action at the Federal or State High Court challenging his substitution before the 1st Respondent was elected Governor, section 308 would not avail the 1st Respondent even if the suit has to be heard while he is in office as Governor. That was what happened in the much celebrated case of Amaechi Vs. INEC (Supra). The Appellant in this case was a bit indolent about his right. A seemingly pre-election matter, filed at a post election period with the semblance of an election matter by an Originating summons, appears to be a civil matter for which it is caught by section 308 of the Constitution. This attempt to remove an elected Governor via an Originating Summons six months after the Governor was sworn into office, is to my mind a civil matter for which the Governor enjoys immunity as per section 308 of the Constitution. I therefore resolve this issue against the appellant.
Issue No.3 seems to have been taken care of while I resolved the 2nd issue. But for avoidance of doubt, let me briefly state that in the process of electioneering, all pre-election grievances are to be ventilated either at the Federal High Court or State High Court. After the elections or call it post election period, all grievances should, as provided in section 285 of the Constitution, be filed by way of petition at an election Petition Tribunal. The Appellant relies heavily on Amaechi’s case (Supra). But the facts in Amaechi’s case are not in all fours with the present case. In Amaechi’ s case, the suit was filed at the Federal High Court before the election took place and when the Electoral body, in spite of the pendency of the said case, went ahead to conduct the election and declared Omehia governor, this is what the Supreme Court said at page 199 of the report paragraph C – F on the issue:-
“It is common ground that the 2nd Respondent was declared as Governor of River State notwithstanding the pendency of law suits relative to who should occupy that position. The lawful occupation of the office of Governor of Rivers State is the subject matter of this appeal. The right to the subject matter was already in Court for adjudication before the 1st Respondent went ahead to conduct the election of 14th April, 2007 and eventually swore in the 2nd Respondent as the Governor of the State. The doctrine of lis pendes finds expression in the assertion that it prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or hopelessness on the parties or the Court during the pendency in Court of an action and even after. By that doctrine, the law does not allow to litigant parties or give to them, during the currency of the litigation involving them, the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallows any transfer of rights or interest in any subject matter. The well – known maxim is “pendente lite mihil innovetur” meaning: during Litigation, nothing new should be introduced. See Dan – Jumbo Vs. Dan – Jumbo (1999) 11 N.W.L.R. (Pt. 627) 445. Going by the facts of this case as set out above, it is my humble view that the doctrine applies.”
It is to be reiterated that this Court and every other Court for that matter has never taken lightly the issue of lis pendes and will not hesitate to exercise its coercive jurisdiction to return the parties to their status quo and that is what happened in Amaechi’s case (Supra). This is not the case in the instant suit which gave birth to this appeal. The suit was not pending at the time the 1st Respondent was elected Governor. So the case of Amaechi does not apply in this case. Each case has its own peculiar facts as no two cases are exactly the same.
Ordinarily, the Federal High Court would have had jurisdiction to hear this matter if it was filed before the election of the 1st Respondent on 14th April, 2007. Again, the inclusion of the 3rd Respondent in this suit made it statute barred having not been commenced within three months of the accrual of the cause of action. Thus at the time the suit was filed in November, 2007, the Federal High Court had no jurisdiction to hear the case, moreso, as the suit has the flavour of an election petition which ought to have been ventilated at the Election Petition Tribunal. There, the appellant should have pleaded valid nomination but unlawfully excluded by virtue of section 145(1)(d) of the Electoral Act, 2006. I hold a well considered view that the Federal High Court lacked the jurisdiction to entertain this suit as is presently constituted. Accordingly, this issue is resolved against the Appellant.
On the whole, I find no merit in this appeal and is hereby dismissed. I affirm the decision of the Federal High Court, Kaduna which struck out the Plaintiff/Appellant’s action. I award costs of N30,000.00 to the 1st Respondent to be paid by the Appellant.
Other Citations: (2009)LCN/3211(CA)
