Abdullahi V. Loko & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C.

This is an appeal against the decision of the Court of Appeal, Abuja division affirming the judgment of the High Court of the Federal Capital Territory, Abuja which granted the prayers of the 1st Respondent sought on the face of his amended originating summons filed on 10th September, 2021.

STATEMENT OF FACTS

​The 2nd Respondent conducted a primary election to elect its Chairmanship candidate for Abaji Area Council of the Federal Capital Territory at which five aspirants including the Appellant and 1st Respondent participated. The Primary election was held on 23rd April, 2021 in accordance with the Constitution of the 2nd Respondent and Guidelines issued by the 2nd Respondent. At the conclusion of the primary election exercise, the 1st Respondent was declared winner with 150 votes as against the Appellant who scored 123 votes. The 1st Respondent deposed in his affidavit in support of his amended originating summons that, contrary to the outcome of the election, the 2nd Respondent submitted the name of the Appellant as its Chairmanship candidate for the Abaji Area Council election, to the 3rd Respondent.

According to the 1st Respondent’s narrative, the 3rd Respondent whose officials monitored the primary election of the 2nd Respondent failed to seek clarification from the 2nd Respondent before accepting the name of the Appellant as candidate for the Abaji Area Council Chairmanship Election.

Appellant’s case on the other hand is that the Primary Election Committee recorded scores for aspirants without confirming the number of ballot papers thumb-printed for the aspirants. That the Chairman of the Election Committee announced the result of the election but did not announce the total number of accredited voters, invalid votes and total valid votes cast before he left the venue of the primary election. The Appellant stated further that he submitted a petition to the Appeal Committee which was investigated by the Appeal Committee.

The Committee was said to have invited the 1st Respondent who made his representation before a decision was taken in favour of the Appellant. That the Caretaker/Extraordinary Convention Planning Committee of the 2nd Respondent accepted the Report of the Appeal Committee which declared him as the winner of the Abaji Chairmanship Primary Election consequent upon which his name was forwarded as candidate of the 2nd Respondent to the 3rd Respondent.

It is against the backdrop of the above facts that the 1st Respondent as Claimant filed an amended originating summons at the High Court of the Federal Capital Territory, Abuja seeking for the determination of four (4) questions to wit:

1. “Whether having regard to the provisions of Section 87(4) (d) of the Electoral Act, 2010 (as amended) and INEC Form: INEC/EPMC/09 dated 23rd of April, 2021, the 1st Defendant was not manifestly wrong in law when, it accepted and published the name of the 3rd Defendant as the Candidate of the 2nd Defendant for the Area Council Chairmanship Election slated for the 12th day of February, 2022 despite the fact that it was the Claimant who was declared the winner of the 2nd Defendant’s Primary Election held on the 23rd of April, 2021 at Abaji Area Council which was supervised by the 1st Defendant in whose presence the declaration of the Claimant as the winner of the primary election was made.
2. Whether having regard to the provisions of Section 87(4)(d) of the Electoral Act, 2010 (as amended) ​ and Paragraph 14(b) (viii) of the APC Guidelines for the Nomination of Candidates for the FCT Area Council And Ward Elections, 2021, the 2nd Defendant was not wrong when it forwarded the name of the 3rd Defendant to the 1st Defendant as her nominated candidate for the Chairmanship of Abaji Area Council for the Area Council Chairmanship Election to be held on the 12th day of February, 2022 despite the fact that the Claimant scored the Highest number of lawful votes and was declared winner of the 2nd Defendant’s Primary election conducted on the 23rd day of April, 2021 in the Presence of the 1st Defendant who supervised the said Primary election.
3. Whether upon a proper interpretation and application of the provision of Section 87(4)(d) of the Electoral Act 2010 (as amended) and Paragraph 14(b) (viii) of the APC Guidelines for the Nomination of Candidates for the FCT Area Council and Ward Elections, 2021, the Claimant’s name ought not to have been submitted to the 1st Defendant and published by the 1st Defendant as the Candidate of the 2nd Defendant in the Area Council election slated for the 12th day of February, 2022, the Claimant having scored the highest lawful votes cast and declared Winner of the 2nd Defendant’s Primary election conducted on the 23rd day of April, 2021.
4. Whether upon a proper interpretation and application of the combined provisions of Section 87 (4) (d) of the Electoral Act, 2010 (as amended), Article 20 of the Constitution of the All Progressives Congress and Paragraph 14(b) (viii) of APC Guidelines for the Nomination of Candidates for the FCT Area Council and Ward Elections, 2021, the submission of the 3rd Defendant’s name as Candidate of the 2nd Defendant in the forthcoming Local Government Chairmanship Election slated for the 12th day of February, 2022 and the subsequent publication of same by the 1st Defendant is not null and void and ought to be nullified in view of the fact that it was the Claimant that scored the highest lawful votes cast and was declared the winner of the 2nd Defendant’s Primary election conducted on the 23rd day of April, 2021.”

In the event of a favourable answer to the aforementioned questions, the 1st Respondent sought for the following reliefs:

1. “A DECLARATION that by the provision of Section 87(4) (d) of the Electoral Act, 2010 (as amended) and INEC Form: INEC/EPMC/09 dated 23rd of April, 2021, the 1st Defendant was manifestly wrong in law when it accepted and published the name of the 3rd Defendant as the Candidate of the 2nd Defendant for the Area Council Election slated for 12th day of February, 2022 despite the fact that it was the Claimant who was declared the winner of the 2nd Defendant’s Primary Election held on the 23rd of April, 2021 at Abaji Area Council which was supervised by the 1st Defendant and in whose presence the declaration of the Claimant as the winner of the primary was made.
2. A DECLARATION that by the provision of Section 87(4)(d) of the Electoral Act, 2010 (as amended), Paragraph 14(b) (viii) of the APC Guidelines for the Nomination of Candidates for the FCT Area Council and Ward Elections, 2021, the 2nd Defendant was wrong when it forwarded the name of the 3rd Defendant to the 1st Defendant as her Candidate for the Chairmanship of Abaji Area Council for Council election slated for the 12th day of February, 2022.
3. A DECLARATION that upon a proper interpretation and application of the provision of Section 87(4)(d) of the Electoral Act, 2010 (as amended), Article 20 of the Constitution of the All Progressives Congress and Paragraph 14(b) (viii) of the APC Guidelines for the Nomination of Candidates for the FCT Area Council And Ward Elections, 2021, the Claimant’s name ought to have been submitted to the 1st Defendant and published by the 1st Defendant as the Candidate of the 2nd Defendant for the Area Council election slated for the 12th day of February, 2022.
4. A DECLARATION that upon a proper interpretation and application of the combined Provisions of Section 87(4)(d) of the Electoral Act, 2010 (as amended), Article 20 of the Constitution of the All Progressives Congress and Article 14(b) (viii) of APC Guidelines for the Nomination of Candidates for the FCT Area Council And Ward Elections, 2021, the submission of the 3rd Defendant’s name as Candidate of the 2nd Defendant in the forthcoming Area Council Chairmanship Election slated for the 12th day of February, 2022 and the subsequent publication of same by the 1st Defendant is unlawful and liable to be set aside in view of the fact that it was the Claimant that scored the highest lawful votes cast and was declared winner of the 2nd Defendant’s Primary election conducted on the 23rd day of April, 2021.
5. AN ORDER of this Court setting aside and/or nullifying the submission and publication of the name of the 3rd Defendant as the Candidate of the 2nd Defendant for Abaji Area Council in the FCT Area Council’s chairmanship election slated for the 12th day of February, 2022.
6. AN ORDER that the Claimant having scored the highest lawful votes cast at the primary election held on the 23rd of April, 2021 is the duly nominated Candidate of the 2nd Defendant for the seat of the Chairman Abaji Area Council in the forthcoming FCT Area Council’s Election slated for the 12th day of February, 2022.
7. AN INJUNCTION prohibiting the 2nd Defendant from holding out or representing the 3rd Defendant as her nominated Candidate for the Chairmanship position of Abaji Area Council in the Area Council election slated for the 12th day of February, 2022.
8. AN ORDER that the 1st Defendant grant the Claimant all the Rights and Privileges as the duly nominated Candidate of the 2nd Defendant in the election to the office of the Chairman of Abaji Area Council slated for the 12th day February 2022.
9. AN ORDER mandating the 1st Defendant to recognize and treat for all purposes including, but not limited to recognizing the Claimant as the 2nd Defendant’s nominated candidate for the Chairmanship election of Abaji Area Council slated for the 12th day of February, 2022.
10. AN INJUNCTION prohibiting the 3rd Defendant from parading himself or otherwise presenting himself as the 2nd Defendant’s nominated Candidate for the Chairmanship election for Abaji Area Council slated for the 12th day of February, 2022.
11. AND for such other ORDER(S) or CONSEQUENTIAL ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this case and in the interest of justice.

The Appellant, upon receipt of the Originating Summons, challenged the jurisdiction of the Court on the contention that the suit was filed outside the fourteen (14) days allowed by Section 285 (9) of the 1999 Constitution (4th Alteration Act).

​Upon hearing of the Originating Summons together with the preliminary objections filed by the Appellant and the 2nd Respondent herein, the trial Court found in favour of the 1st Respondent. Miffed by the outcome of the judicial exercise, the Appellant approached the Court below for redress but the Court dismissed the appeal in its unanimous judgment delivered on 7th January, 2022.

In a bid to exhaust his right of appeal, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 19th January, 2022.

In line with the rules and practice of this Court, parties filed and exchanged their respective briefs of argument. ABDUL MOHAN/WIED, SAN settled the Appellant’s brief filed on 8th February, 2022. On 28th February, 2022, the learned senior counsel also filed a joint Reply Brief to the 1st and 3rd Respondents’ brief of argument. At paragraph 12 of the Appellant’s brief, counsel formulated two issues for the determination of the appeal as follows:

1. “Whether the 1st Respondent’s suit is not statute barred in view of the provisions of Section 285(9) of the 1999 Constitution (4th Alteration Act)? (Distilled from Ground One (1) of the Notice of Appeal)
2. Whether the circumstances in which Exhibit LOKO 3A was introduced by the 1st Respondent, the Appellant’s right to fair hearing was not breached? (Distilled from Grounds Two (2) and Three (3) of the Notice of Appeal)

AZEEZ TAIWO HASSAN, ESQ. settled the 1st Respondent’s brief of argument filed on February, 2022. At paragraph 4.1 of the 1st Respondent’s brief, counsel adopted the issues formulated by the Appellant’s counsel for the determination of the appeal.

The 2nd Respondent’s brief of argument was filed on 28th February, 2022. The said brief was settled by SARAFA YUSUFF ESQ. who merely stated the facts culminating into the instant appeal without submitting any issue for determination. This is in view of the fact that the 2nd Respondent filed a separate appeal before this Court in appeal no. SC/CV/76/2022. The instant appeal and appeal no. SC/CV/76/2022 filed by the 2nd Respondent herein arose from the same events complained of.

The 3rd Respondent’s brief of argument was filed on 28th February, 2022. The said brief was settled by BASHIR M. ABUBAKAR ESQ who at paragraph 3.1 of the 3rd Respondent’s brief distilled a sole issue for determination to wit:

“Whether having regard to circumstances of this appeal, the Appellant is entitled to the reliefs sought.”

It is instructive to note that the 3rd Respondent, being the statutory body constitutionally empowered under the Third Schedule, Item F, paragraph 15(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to monitor the organizations and operations of political parties, including their finances, conventions, congresses and party primaries has stated unequivocally that it takes no position in this appeal. The 3rd Respondent’s counsel at paragraph 4.1 of the 3rd Respondent’s brief undertakes to be bound by the outcome of this appeal. In the light of this, the submissions and arguments rendered by the 3rd Respondent in support of its sole issue therefore becomes otiose and shall not be given consideration in the determination of the appeal.

This appeal will therefore be determined within the confines of the issues distilled by the Appellant which was adopted by the 1st Respondent.

​As a prelude, before going into the analysis of the submissions and arguments of counsel for the Appellant and 1st Respondent as epitomized in their respective briefs, it is imperative to state that the 1st Respondent incorporated a notice of preliminary objection in his brief. The objection was brought pursuant to Order 8 Rule 4 of the Supreme Court Rules, 1999 (as amended). The objection is predicated on the following grounds:

1. “The grounds of appeal and their particulars attached are vague and general in terms and liable to be struck out.
2. The two (2) issues formulated from the said grounds of appeal are incompetent and liable to be struck out.”

It is well settled law that where a notice of preliminary objection is filed or argued in the Respondent’s brief challenging the jurisdiction of the Court or the competence of an appeal, the Court is duty bound to consider the preliminary objection first and determine same, before considering the appeal on the merit if the need arises. See EFET V. INEC & ORS (2011) LPELR-8109 (SC); OSANYANBI & ORS V. LASISI & ORS (2019) LPELR-47389 (SC); ONYEMEH & ORS V. EGBUCHULAM & ORS (1996) LPELR-2739 (SC); TOYIN V. MUSA & ORS (2019) LPELR-49328 (SC).

​On the objection, counsel for the 1st Respondent submitted that Ground one of the Appellant’s notice of appeal has twenty (20) particulars and the said particulars cover a large range of issues, most of which according to counsel are completely unconnected to the ground of appeal. Counsel submitted further that the entire complaints of the Appellant are confusing, vague and difficult to understand.

Counsel submitted that Order 8, Rule 3 and 4 of the Rules of this Court, provides that a Notice of Appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely on at the hearing of the appeal without any argument or narrative and shall be numbered concisely.

It was the contention of counsel for the 1st Respondent that grounds 1-3 of the notice of appeal vis-a-vis their particulars are not only imprecise, vague, argumentative, repetitive, but also general in nature and therefore liable of being struck out. Reliance was placed on UMANAH (Jnr) V. N.D.I.C (2016) 14 NWLR (PT. 1533) PAGE 458 AT 474, PARA F; KLM ROYAL DUTCH AIRLINES V. ALOMA (2017) LPELR-42588 (SC).

​On the competence of the issues distilled for determination, counsel for the 1st Respondent submitted that the Appellant, having formulated his two issues for determination from the said incompetent grounds of appeal, the issues are also incompetent and liable to be struck out. He argued that the law is settled that where a party formulates issues for determination from incompetent grounds of appeal, the said issues will be incompetent as it would have been infected with the virus in the offensive grounds and particulars. Reliance was placed on AGBAKA & ORS v. AMADI & ANOR (1998) LPELR-231 (SC)

In the final analysis of the objection, counsel urged the Court to uphold the Preliminary Objection and strike out this appeal for being incompetent.

In response to the objection, counsel for the Appellant submitted that the grounds of appeal formulated did express the complaints of the Appellant and pass the test laid by the Supreme Court in the case of LAGGA V. SARHUNA (2008) LPELR-1740(SC).

It was the submission of counsel for the Appellant that the loads of particulars in support of these grounds did in fact give the 1st Respondent sufficient notice and information of the precise nature of the Appellant’s complaint against the judgment appealed against.

​Counsel also submitted that another reason why the preliminary objection must fail is that assuming the grounds were vague and imprecise, the fact that they raised issues of jurisdiction cannot be affected by the manner in which it was raised. Further to this, counsel submitted that this Court has held severally that a ground of appeal challenging jurisdiction cannot be ignored for any reason whatsoever. Reliance was placed on OBIEZE (BY HIS ATTORNEY-UCHE OKAFOR) V. ATTORNEY-GENERAL, RIVERS STATE & ANOR (2001) 18 NWLR (Part 746) page 524 (Page 562 Para G).

Counsel, therefore, submitted that the contention of the 1st Respondent that these said grounds of appeal are vague is misconceived and a desperate attempt to conjure an objection where one does not exist. This Court was urged to disregard this objection and to dismiss same for lacking in merit.

RESOLUTION OF PRELIMINARY OBJECTION

The crux of the 1st Respondent’s objection is that the grounds of appeal are vague, imprecise, argumentative, general, confusing and incapable of being understood.

​By virtue of Order 8 Rule 2(4) of the Supreme Court Rules, no ground of appeal which is vague or general in terms and which discloses no reasonable ground of appeal shall be permitted. Vagueness of a ground of appeal may arise where it is couched in a manner which does not give allowance for its being understood, or where what is stated there is so uncertain and robs it of any form of intelligibility. It may also be vague when the complaint is not defined in relation to the subject matter or the particulars are clearly irrelevant to the grounds. See CBN & ANOR V. OKOJIE & ORS (2002) LPELR-836 (SC); AGWU & ORS V. JULIUS BERGER PLC (2019) LPELR-47625 (SC); ADELEKE V. ASANI & ANOR (2002) LPELR-115 (SC).

The grounds of appeal contained in the Appellant’s notice of appeal are as follows:

“Ground One

The Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court in spite of the fact that the action was initiated outside the mandatory period prescribed in Section 285(9) of the 1999 Constitution (as amended 2015) as the cause of action of the 1st Respondent had become statute barred thereby robbing the trial Court of the vires to adjudicate the suit.

Ground Two

The learned justices of the Court of Appeal erred in law and breached the right of fair hearing of the Appellant when after accepting Exhibit LOKO 3A the Appellant was prevented from challenging its content

Ground Three

The learned justices of the Court of Appeal erred in law and allowed the 1st Respondent to overreach the Appellant by accepting Exhibit LOKO 3A at the time when the Appellant had no opportunity to file any response to the probative value that ought to be placed on the document”

Ground 1 specifically raises the fact that the 1st Respondent’s Claim before the trial Court was impacted by the terminal effect of Section 285 (9) of the 1999 Constitution (as amended) thereby ousting the vires of the trial Court.

Ground 2 condescends on the issue of fair hearing which is a constitutionally guaranteed right of the Appellant allegedly violated by the trial Court while ground 3 relates to the principle of overreaching which is a cardinal principle of our adversarial judicial system.

​It is my view that the grounds of appeal and their particulars in this appeal do not suffer any of the described shortcomings as alleged by the 1st Respondent. By loading the grounds of appeal with particulars as done by the Appellant in the instant appeal does not render the grounds vague, imprecise, argumentative, general, confusing and incapable of being understood. There is no rule of our appellate practice that prescribes a maximum number of particulars of grounds of appeal in as much as the particulars are related to the grounds.

I am also in agreement with counsel for the Appellant that a ground or grounds of appeal challenging jurisdiction or denial of right to fair hearing cannot be ignored for any reason whatsoever.

Without further ado, I find no iota of substance in the objection. Same is hereby dismissed. Having dismissed the objection, I shall therefore proceed to consider the appeal on its merits.

ARGUMENTS AND SUBMISSIONS OF THE APPELLANT AND 1ST RESPONDENT

On whether the 1st Respondent’s suit is statute barred in view of the provisions of Section 285(9) of the 1999 Constitution (4th Alteration Act), counsel for the Appellant argued that it is trite law that a person’s right of action in an election related cases accrues from the date of the occurrence of the event and not from several actions as is the case in ordinary civil cases owing to the fact that election related cases are sui generis and time is of the essence in pre-election matters. Reliance was placed on AFOLAYAN V. OGUNRINDE [1990] 1 NWLR (Pt. 127) P. 369 at pp.382-383; JAFAR SANI BELLO V. ABBA K. YUSUF & ORS (2019) LPELR-47918(SC).

It was the submission of counsel for the Appellant that the 1st Respondent knew that he was not nominated by the 2nd Respondent on the 25th May, 2021. He further submitted that the grievance of the 1st Respondent is as deposed in paragraphs 14 to 17 of the affidavit in support of the amended originating summons and Exhibit Loko 6 attached to the affidavit. Reference was made to pages 10 and 11 of vol. 1 the record of appeal and pages 1946 to 1967 of vol. 4 of the record of appeal.

Learned senior counsel for the Appellant argued that the law is settled that exhibits attached to an affidavit form part of the affidavit and for this point, he relied on the case of EZEANOCHIE V. IGWE (2020) 7 NWLR (PART 1724) P 430. He argued further that it is settled law that documents attached to an affidavit are the hangers with which to measure the truth and veracity of the depositions. Reliance was placed on GURARA SECURITIES & FINANCE LTD V. T. I. C. LTD (1999) 2 NWLR (Part. 589) 29, UBN V. OZIGI (1994) 3 NWLR (Part. 333) 385, OPIGO V. YUKWE (1997) 6 NWLR (Part, 509) 428, UMARU V. OCHIGBO (1993) 6 NWLR (Part. 298) 217.

Counsel submitted that by Exhibit Loko 6, the decision which caused rancour between the members of the 2nd Respondent owing to the nomination of the Appellant instead of the 1st Respondent, occurred on the 25th May 2021 and the suit having been filed on the 9th June 2021, was caught by Section 285(9) of the Constitution (supra). Counsel further submitted that the 1st Respondent argued at the lower Courts that he only became aware of the actions of the 2nd Respondent on the 31st May 2021. That the 1st Respondent contended before the lower Court that by the decision of this Court in HON. HINGAH BIEM V SDP (2019) 12 NWLR (Part 1687) SC 377, the material date is the date in which the name of the Appellant was submitted to the 3rd Respondent by the 2nd Respondent.

​It was the submission of counsel that in the interpretation of the words used in Section 285(9) of the Constitution, this Court has consistently held that the cause of action in respect of pre-election matters is dependent on the “date of the occurrence of the event, decision of action”.

The Appellant’s counsel submitted further that in the instant appeal, the 1st Respondent knew he will not be nominated since 20th May 2021 when the 2nd Respondent did not give him the Statutory Forms EC 9, EC 9F and EC 13F envisaged under Section 31 of the Electoral Act which ought to have been given to nominated candidates.

Counsel submitted that going by the letter written by the 1st Respondent’s Solicitors in Exhibit Loko 6, the Respondent knew he will not be nominated by the 2nd Respondent on the 25th May, 2021 but did not go to Court to ventilate his grievance.

Further to the above, counsel for the Appellant submitted that the 1st Respondent knew that he has since been dislodged at the appeal committee of the 2nd Respondent. That by its Notice of preliminary objection contained at pages 926-965 of vol. 2 of the Record and pages 2526-2623 of vol. 5 of the Record challenging the jurisdiction of the trial Court on the ground that the suit was filed in contravention of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), ​the 1st Respondent having participated in the appeal brought against the primary election was aware that the appeal committee upturned his victory and therefore, the cause of action arose from the date of decision of the appeal committee made on 24th April, 2021.

Counsel submitted further that the trial Court was wrong to have set aside the decision of the appeal committee on the ground that the 1st Respondent’s fight to fair hearing was breached. He contended that to hold that the decision of the appeal committee cannot stand because of any infringement of the right of the 1st Respondent or its composition as done by the lower Courts is to assume jurisdiction over an act that was done after the expiration of 14 days and as such ultra vires the powers of the Court in the light of the provisions of Section 285 (9) of the Constitution.

​In the final analysis of issue no. 1, counsel urged this Court to resolve this issue in favour of the Appellant and against the 1st Respondent. In response to the issue predicated on limitation of action, counsel for the 1st Respondent argued that the law is settled that in the determination of the question as to whether or not an action is statute barred, the Court will peruse the Originating Processes of the Plaintiff for the purpose of situating the cause of action, which is generally the complaint of the Plaintiff before the Court. Reliance was placed on YARE V. N.S.W.I.C (2013) 12 NWLR (PT. 1367) PAGE 173 AT 848, PARAS D-G; EGBE V. ADEFARASIN (1987) 2 NWLR (PT. 47) PAGE 1 AND WILLIAMS V. WILLIAMS (2008) ALL FWLR (PT. 433) PAGE 1245, (2008) 10 NWLR (PT. 1095) PAGE 364.

He submitted that the 1st Respondent’s case was predicated on Sections 87 (4) (d) of the Electoral Act, 2010 (as amended). That the 1st Respondent’s cause of action before the trial Court was the wrongful submission or forwarding of the Appellant’s name to INEC and that action of forwarding same was done on the 29th of May, 2021 by the 2nd Respondent in this appeal via Exhibit Loko 5 which is at pages 41 to 46 Vol. 1 and pages 1977 to 1982 of Vol. 4 of the Records of Appeal.

​It was the submission of counsel that the two lower Courts were therefore right when they found that the 1st Respondent’s cause of action arose on the 29th day of May, 2021 when the 2nd Respondent wrongfully forwarded the name of the Appellant to the 3rd Respondent instead of the 1st Respondent’s name. That the suit having been filed on the 9th day of June, 2021 cannot be said to have been filed out of time as argued by the Appellant.

Counsel submitted further that the decisions of the two lower Courts are in line with the trite position of law as far as the provisions of Section 285(9) of the Constitution (supra) is concerned. That this Court has held in plethora of authorities that the date of submission of a name other than the winner of a primary election is the date the cause of action accrues. Reference was made to the cases of MOHAMMED SANI MUSA VS DAVID UMAR & ORS, (2020) 11 NWLR (PT. 1735) delivered on the 14th of June, 2019 in Appeal NO: SC/405/2019; SAKI VS APC (2020) 1 NWLR (PT. 1705) PAGE 515; APC V LERE (2020) 1 NWLR (PT. 1705) PAGE 254.

He also submitted that by relying on Exhibit Loko 6 i.e. the letter written by the 1st Respondent’s solicitor addressed to the National Chairman/Caretaker/Extraordinary Convention Planning Committee of the 2nd Respondent, the Appellant was setting up a completely different case for the 1st Respondent.

On whether his cause of action arose when the appeal committee of the 2nd Respondent replaced his name with that of the Appellant, the 1st Respondent submitted he was never aware that an election appeal committee was even constituted, sat and made a report in Exhibit ABAJI 3 & 4 attached to the Appellant’s notice of preliminary objection.

Counsel therefore urged this Court to resolve this issue in favour of the 1st Respondent and against the Appellant.

RESOLUTION

Issue no. 1 is predicated on limitation of action. The law is trite that where an action is statute barred, the effect is that the cause of action is or becomes extinct by operation of law and it can no longer be maintained in the law Court. In determining whether an action is statute barred, it is a matter of calculation of raw figures which extricates the discretion of the Court in respect of the matter. Consequently, a Court of law has no jurisdiction to adjudicate upon a suit which is statute barred. See SOSAN V. ADEMUYIWA (1986) 3 NWLR (pt.27) 241; ADEKOYA V. FHA (2000) LPELR-105 (SC); HASSAN V. ALIYU & ORS (2010) LPELR-1357 (SC); CIL RISK & ASSET MANAGEMENT LTD. V. EKITI STATE GOVT. & ORS (2020) LPELR-49565 (SC); EGBE V. ADEFARASIN (1987) LPELR-1032 (SC).

In determining whether an action is statute barred, plethora of the decisions of this Court has stated that it is only the Statement of Claim that is the relevant process to be considered. And in an action commenced by Originating summons, the Court is restricted to the affidavit in support of the originating summons. However, the approach has changed in recent times particularly when the merit of the suit is considered together with the preliminary objection alleging limitation of action. The current position of the law is that in considering whether an action is statute barred, the cogent facts in the statement of defence or facts deposed to in the counter-affidavit as the case may be, are also material and relevant for consideration. When a Court is faced with the question challenging its jurisdiction, just like the instant appeal, the Court will consider all the available facts that are cogent and relevant to the issue. See WALI V. APC (2020) 16 NWLR (Pt. 1749) 82 at Para. B-E; APC V. LERE (2020) 1 NWLR (Pt. 1705).

It is not in dispute that the cause of action of the 1st Respondent is pre-election in nature. In deciding whether a pre-election matter is statute barred or otherwise, recourse must first be made to the provision of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The section provides 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.”

The 1st Respondent in his affidavit in support of his amended originating summons posited that having won the primary election of 23rd April, 2021, he became aware of his substitution when the 2nd Respondent forwarded the name of the Appellant to the 3rd Respondent on 29th May, 2021.

​The Appellant in the instant appeal on the other hand has provided different dates in which the 1st Respondent’s cause of action arose. At first, counsel contended that the decision which caused rancour between the members of the 2nd Respondent owing to the nomination of the Appellant instead of the 1st Respondent occurred on the 25th May, 2021.

Secondly, counsel submitted that the cause of action arose on the 20th May, 2021 when the 2nd Respondent did not give the 1st Respondent the Statutory Forms EC 9, EC 9F and EC 13F envisaged under Section 31 of the Electoral Act which ought to have been given to nominated candidates.

Thirdly, counsel made heavy weather on the decision of the appeal committee of the 2nd Respondent stating that the cause of action began to run when the appeal committee handed down its decision on 24th April, 2021, replacing the 1st Respondent as its candidate.

Notwithstanding the proliferation of dates in which the cause of action arose, this Court shall sieve through the affidavit evidence together with the exhibits attached to determine when the cause of action arose for the purpose of determining whether the cause of action is statute barred or otherwise.

It should be noted that in determining whether a pre-election matter is statute barred, some of our past decisions to wit; MOHAMMED SANI MUSA V. DAVID UMAR & ORS (2020) 11 NWLR (Pt. 1735); SAKI V. APC (2020) 1 NWLR (Pt.1706) page 515; APC V. LERE (2020) 1 NWLR (Pt. 1705) 8254 have placed emphasis on the fact that it is reasonable to say that the cause of action occurred when the aggrieved party became aware of his replacement with another. In those decisions, this Court was of the view that the cause of action occurs when the aspirant first declared winner of party primary election becomes aware that he has been replaced as winner of the said primary or its candidate for the election. This is because such awareness occurred actually or constructively, only when another name was substituted by the party to INEC or the list was published by INEC.

This Court has moved from the above position and it is currently of the view that it is the date of the occurrence of the event, decision or the action complained of that is to be reckoned with and not the date the aggrieved party became aware of the event, decision or complained of. In BELLO V. YUSUF & ORS (2019) LPELR-47918 (SC), this Court, per Musa Dattijo Muhammed, JSC (delivering the lead judgment) held as follows:

“I am unable to agree with learned counsel that appellant’s cause of action begins to run, by virtue of the limitation prescribed under Section 285 (9) of the 1999 Constitution, as altered, from the time he becomes aware of 1st respondent’s non-compliance which, on the latter’s participation in the primary election, creates appellant’s right to sue. The clear and unambiguous section neither makes knowledge on the part of the appellant a pre-condition to the filing of his action nor excludes the date his cause of action accrues in the determination of when time begins to run against him. By the Section, appellant’s knowledge of 1st respondent’s non-compliance with 2nd respondent’s Constitution and Electoral Guidelines is immaterial. To hold that time begins to run against the appellant only on his becoming aware of 1st respondent’s non-compliance and further exclude the date appellant’s cause of action accrues, in determining when limitation begins to run against him, is to read into the section what it does not contain. No Court has the jurisdiction of doing so. See DANGANA & ANOR V. USMAN & ORS (2012) LPELR-25012 (SC) and GANA V. SDP & ORS (2019) LPELR-47153 (SC). By the section, the limitation period is 14 days and since neither knowledge nor the date of the accrual of the cause of action is made a precondition for the determination of the period, the lower Court in excluding appellant’s knowledge of 1st respondent’s non-compliance and taking into cognizance the date his cause of action arises in its computation of the limitation period is beyond reproach.”

The approach of this Court in the aforementioned case was also recently adopted in the case of HON. MURTALA USMAN KARSHI & ORS. V. HON. SULEIMAN GWAGWA & ORS. Appeal no. SC.1166/2021, delivered on 10th February, 2022, wherein my learned brother, Agim JSC after reviewing the former position as reflected in APC V. LERE; MUSA V. UMAR and SAKI V. APC (supra), made it expressly clear that in the computation of time, the knowledge of the claimant regarding the event, decision and action complained of is irrelevant.

Having stated the guiding parameters in determining when the 1st Respondent’s cause of action accrued, the question that follows from the provision of Section 285(9) is what date did the event, decision of action complained of in the suit culminating into the instant appeal take place?

​The 1st Respondent as claimant in paragraph 11 of the affidavit in support of the amended originating summons stated that:

“…the 2nd Defendant on the 29th of May, 2021 submitted the name of the 3rd Defendant who was the 1st runner up, to the 1st Defendant instead of my name having been declared the winner of the primary election”

In deciding the applicable date of the event, decision or action complained of for the purpose of limitation of action, this Court must first determine the event, decision or occurrence complained of.

Out of the three dates provided by the Appellant as the date of accrual of the 1st Respondent’s cause of action, one of the dates is worthy of serious consideration. The Appellant in his brief of argument drew the attention of this Court to paragraphs 14, 15 and 16 of the affidavit in support of the amended originating summons and Exhibit Loko 6 which is the letter of protest written by the 1st Respondent’s Solicitors to the National Chairman/Caretaker/Extraordinary Convention Planning Committee of the 2nd Respondent.

​In paragraphs 14, 15 and 16 of the said affidavit in support of the amended originating Summons, the 1st Respondent deposed to the following facts:

“14. To my chagrin, it came to my notice on the 31st May 2021 that the 2nd Defendant on the 29th May, 2021 submitted the name of the 3rd Defendant who is the runner up, to the 1st Defendant instead of my name having been declared winner of the Primary Election. A copy of the letter dated 25th May, 2021 but received by the 1st Defendant on the 29th day of May, 2021 with which the 2nd Defendant forwarded the name of the 3td Defendant is hereby attached and marked as Exhibit Loko 5.

15. That this fact stated above also filtrated the entire town of Abaji and created rancour and commotion amongst the 2nd Defendant’s Members in Abaji and its environs. I however called on my supporters and addressed them to be calm and that we shall take appropriate legal measures to reclaim the mandate.
16. I therefore quickly briefed my Solicitors to take every step conceivable in the protection of my due nomination as the Candidate of the 2nd Defendant for the position of the Chairmanship of Abaji Area Council.”

​The steps taken by the 1st Respondent’s Solicitors included writing Exhibit Loko 6. Examining the above depositions contained in paragraphs 14, 15 and 16 of the affidavit in support of the amended originating summons vis-a-vis Exhibit Loko 6, although the 1st Respondent did not state the date in which the news of the decision of the 2nd Respondent filtered through social media, I am of the opinion that his Solicitor’s letter is to the effect that the event, decision or action complained of occurred on 25th May, 2021. The content of Exhibit Loko 6 is reproduced hereunder for ease of reference:

“ 3rd June, 2021

The National Chairman/Caretaker/Extraordinary Conventional Planning Committee, All Progressives Congress, His Excellency, Honourable, Mai Mala Buni, 40 Blantyre Street, Off Ademola Adetokumbo Street, Muse II,

Abuja FCT.

Dear Sir,

PROTEST LETTER AGAINST THE LETTER DATED THE 25TH MAY, 2021 WITH REFERENCE NUMBER APC/NHDQ/INEC/15/921/014 FORWARDING THE LIST OF CANDIDATES FOR THE FCT AREA COUNCILS CHAIRMANSHIP ELECTION TO THE CHAIRMAN, INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) PROFESSOR MAHMUD YAKUBU.

We act for Hon. Muhammed Angulu Loko herein referred to as our Client and on whose firm instructions we write this letter.

Our Client informed us of the facts below which we verily believe to be true and correct.

1. That he contested the Abaji Area Council Chairmanship Primary election held on the 23rd day of April, 2021, organized, conducted and well supervised by the All Progressives Congress (APC).
2. That he emerged the winner of the said election pulling 150 votes to beat his closest rival, Hon. Abubakar Umar Abdullahi who pulled 123 votes.
3. That our Client was declared the winner of the said election by the All Progressives Congress (APC) Committee that conducted and supervised the election. The report of the All Progressives Congress (APC) Primary Elections committee for Abaji Area Council is hereby attached for your perusal and guidance.
4. That to the Chagrin of Our Client, by a letter dated the 25th day of May, 2021 widely circulated on social media; the All Progressives Congress (APC) submitted the name of Hon. Abubakar Umar Abdullahi to the Chairman, Independent National Electoral Commission (INEC) instead of the name of our Client.
5. That our Client only became aware of the submission of the name of Hon. Abubakar Umar Abdullahi instead of that of Our Client on the 31st day of May, 2021 and Our Client promptly applied for Certified True Copy of the said letter.

In view of the above, we have our Client’s Instruction to request you to withdraw the name on Abubakar Umar Abdullah and submit that of Hon. Muhammed Angulu Loko who won the Abaji Area Council Chairmanship All Progressives primary election.

Relying on the instruction of our client, we request and demand that you withdraw the said letter sent to the INEC Chairman containing the name of Hon. Abubakar Umar Abdullahi and send that of our Client to INEC as the candidate of the All Progressives Congress (APC) Chairmanship election slated for February, 2022.

We are optimistic that the All Progressives Congress (APC), being a party built on the foundation of justice will not want to do anything to cheaply erode the confidence of the people reposed in the party.

We shall be glad if our complaint and request is given prompt attention.

Thank you.

Yours faithfully,

H.A Ibrahim Esq.”

(Underlining mine for emphasis)

​It should be noted from the heading of the protest letter Exhibit Loko 6, it was clearly stated that it was a complaint against the letter dated 25th May, 2021.

Having carefully examined the decisions of the two lower Courts, I am of the view that if the Courts had paid rapt attention to the contents of Exhibit Loko 6 vis-a-vis the provision of Section 285(9) of the Constitution (supra), the Courts would have come to a different conclusion that the 1st Respondent’s complaint was centered on Exhibit Loko 5, i.e. the letter dated 25th May, 2021 widely circulated on social media that the 2nd Respondent submitted the name of the Appellant to the 3rd Respondent instead of his name, being the person who won the primary election held on 23rd April, 2021.

The learned trial Judge proceeded in his finding of fact at lines 17-20 of page 3018 of Vol.6 of the Record of Appeal thus:

“From the affidavit evidence of the Plaintiff as stated above, the Plaintiff having been declared the winner of the election only got to know on 31/5/2021 that the name of the 3rd Defendant was forwarded to INEC in place of his own name on 29/5/2021 by the 2nd Defendant.

I am of the view that the date upon which it was brought to the knowledge of the Plaintiff that the 2nd Respondent had rather submitted the name of the 3rd Respondent to INEC as against the Plaintiff’s name gave the Plaintiff a cause of action and I so hold”

The Court below was therefore wrong to have endorsed the decision of the trial Court when it held at pages 3404-3405 of vol. 7 of the record of appeal that:

“It must then be, without doubt, date of substitution of the 1st Respondent’s name with that of the Appellant that is being complained of and challenged by the 1st Respondent. Or more specifically, the date it was brought to the knowledge of the 1st Respondent that his name is substituted with that of the Appellant. Thus, in paragraph 11 of his affidavit in support of the amended originating summons in page 1946 vol.4 of the Records of Appeal, the 1st Respondent deposed thus:

“…the 2nd Defendant on the 29th day of May, 2021 submitted the name of the 3rd Defendant who was the 1st runner up, to the 1st Defendant instead of my name having been declared the winner of the primary election”

The cause of action arose not 24th April, 2021 but on the 29th day of May 2021. The action can therefore not be said to be statute barred. If it is not statute barred, then the Court was not robbed of the necessary vires/jurisdiction to entertain the suit in this aspect. Further, I am not convinced by the argument of the Appellant that the 1st Respondent was aware of the appeal process and even participated actively in it. No one has proof of this and the absence of any form of proof, the 1st Respondent’s words remain unchallenged. Mere allegations alone will not suffice. It is trite law in this sort of situation, the burden of proving that the 1st Respondent was aware and in fact participated in the appeal process rest on the Appellant.”

It is evident that the two lower Courts placed premium on knowledge rather than the date of the event, action or decision complained about contrary to the provision of Section 285 (9) of the Constitution (supra).

​I have said earlier that the Appellant in the instant appeal provided different dates in which the 1st Respondent’s cause of action arose. Out of the different dates, the two lower Courts only adverted their minds to and labored heavily on the 24th April, 2021 when the appeal committee was said to have upturned the election of the 1st Respondent and 31st May, 2021 when the 1st Respondent claimed to know that the name of the Appellant was forwarded to the 3rd Respondent.

In actual fact, predicated on the available evidence on the record, the 1st Respondent’s complaint was predicated on the letter dated 25th May, 2021 widely circulated on social media that the 2nd Respondent submitted the name of the Appellant to the 3rd Respondent instead of his name, being the person who won the primary election held on 23rd April, 2021.

The trial Court made reference to the letter of protest in its decision at pages 3017-3018 of vol. 6 of the record of appeal where it held as follows:

“From the originating summons in the Court’s file, the Plaintiff filed this suit on the 9th day of June 2021, from the Plaintiff’s affidavit, the election held on 23/4/2021 wherein the 1st Defendant supervised the election, and the Plaintiff was publicly declared the winner. That Plaintiff was surprised when on 31/5/2021 it came to the notice of the Plaintiff that on the 29th day of May 2021, 2nd Defendant had rather submitted the name of the 3rd Defendant to INEC instead of the name of the Plaintiff. That he had subsequently written a “Letter of protest” to the 2nd Defendant. Nowhere in the Plaintiff’s claim did he mention that he was aware of the Election Appeal process nor did Plaintiff state that he was invited to the Election Appeal which upturned his victory”

If the Courts below realized the importance of the 1st Respondent’s protest in the computation of time, the Courts would have reached the conclusion that the said protest which was in respect of the latter dated 29th May, 2021 was the genesis of the 1st Respondent’s cause of action. The letter of protest in Exhibit Loko 6 was dated 3rd June, 2021 and referred to the letter of 25th May, 2021, Exhibit Loko 5. If the action was filed by the 3rd June, 2021 when Exhibit Loko 6 was written, the action would have been filed within the time stipulated therein in Section 285(9) of the Constitution (supra).

​With the irrelevancy of the knowledge of the event, decision or action complained of, from the 25th May, 2021 to 9th June 2021 when the original Originating Summons was filed is a period of sixteen (16) days outside the fourteen (14) days allowed by Section 285(9) of the 1999 Constitution (4th Alteration Act).

The provisions of Section 285(9) of the Constitution does not allow for a continuous act. It imposes a duty on the person to act immediately the cause of action arose. See HON. NED MUNIR NWOKO V. SEN. PETER N. WAOBOSHI & ORS (2019) LPELR-49202(SC).

In my final analysis, I hereby resolve this issue in favour of the Appellant and against the 1st Respondent.

On the whole, I hold that the 1st Respondent’s suit, having been commenced outside the 14 days statutorily provided for under Section 285 (9) of the Constitution (supra) is statute barred. I also find the consideration of issue no.2 academic and otiose.

Consequently, the suit having been entertained without jurisdiction by the lower Courts is hereby struck out. I therefore find merit in this appeal, same is hereby allowed. The decisions of the two lower Courts are hereby set aside. Parties are to bear their respective cost.

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SC.CV/41/2022