Bello Bar’au Gusau V. All Progressives Congress & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

In his bid to become the first Respondent’s Gubernatorial Candidate for Zamfara State at the 2015 General Elections, the Appellant bought the Expression of Interest Form of the Party for N500, 000. 00 and paid the mandatory sum of N500, 000, 000.00. However, due to a Petition written against him that he was not a Member of the first Respondent, the Appellant was not allowed to participate in the Primary Election.

Whereupon, Appellant took out an Originating Summons at the Federal High Court, which he later amended, with the leave of Court. In the Amended Originating Summons, he presented four Questions, and sought four main and two alternative Reliefs. The Questions are:

1. Whether it was right or even lawful for the 1st and 2nd Defendants after screening, clearing the Plaintiff to enable him contest the APC Gubernatorial Primaries in Zamfara State, to retrieve the Certificate from him and disqualify him from the said contest on the ground that they received a “complaint” from the party in the State not signed by the Chairman stating thus-

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“A complain (sic) received from Party Executive Gusau Local Government that one Bello Bar’au from Galadima Ward that he claim(sic) membership of APC and record shows from his Unit to Local Government Level that he is not a register (sic) member of APC likewise in the State Party Office and also he is not participating in any party activities from Unit to State level”.

1.1. Whether after releasing the Certificate of Clearance or Screening to the Plaintiff by the 2nd Defendant, the later (sic)had not become functus officio with regard to the Zamfara State pre-gubernatorial primary screening of the former by dint of Article 12 of the APC 2014 Gubernatorial Guidelines.

2. Assuming, without conceding that the committee has the powers to disqualify after issuing certificates of clearance, whether it does not amount to an infringement of the Plaintiff’s right to fair hearing for them to act on an (sic) Petition without first calling on him to respond thereto or even showing same to him before proceeding to disqualify him in violation of his right to fair hearing under Section 36 of the 1999 Constitution (as amended).
3. Whether it is not right to nullify the said Primaries on

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grounds of unlawful exclusion of the Plaintiff there-from.

4. Whether the Plaintiff is not entitled to a refund of the sum paid or expended in the Primaries.

The Appellant prayed the trial Court for the following Reliefs-

1. A DECLARATION that the seizure/withholding of the certificate of clearance of the Plaintiff by 1st and 2nd Defendants on 2/12/2014 in Kaduna having already issued same to the said Plaintiff on the 30/11/2014 indicating/signifying and or authenticating a successful screening and clearance on the ground that they subsequently received a Petition after the screening is ultra vires their powers, unlawful, unconstitutional, unwarranted, unjustifiable and usurpation of the powers of the Court and, therefore, null and void of no effect whatsoever.
2. An ORDER compelling the 1st and 2nd Defendants to forthwith return the Plaintiff’s Certificate of Clearance to him.
3. An ORDER restraining the 3rd Defendant from presenting, parading himself as the gubernatorial candidate of 1st Defendant on the strength of the December 4, State Congress of Zamfara State APC Primary Election on the ground that the exclusion of

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the Plaintiff who was validly nominated and cleared from contesting the Gubernatorial Primaries after being issued with a certificate of clearance by the same committee nullified the exercise and the result thereof

4. An ORDER restraining the 1st and 4th Defendants from presenting, accepting, recognizing and or treating the 3rd Defendant as a Gubernatorial Candidate of 1st Defendant for the purpose of the February 2015 general elections or any other election and or to contest for the office of Zamfara State Governor upon or resulting from the said December 4, APC State Congress in Zamfara State or Primary elections.

ALTERNATIVELY:

5. An ORDER of injunction compelling the 4th Defendant to accept, publish, recognize, declare and certify the Plaintiff as the candidate voted for by the Electorates in the Zamfara State Governorship elections held on 11/4/2015 and Ipso facto the winner of the said election.
6. An ORDER awarding the Plaintiff the additional sum of N2,000,000.00 which he spent in the Pre-primary campaign for the Governorship election to the office of Governor of Zamfara State in APC.

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Apart from the second Respondent, who did not enter appearance or file any processes, and fourth Respondent, who entered appearance, but did not file any processes, the first and third Respondents not only filed their respective Counter-Affidavits to the Originating Summons, the two of them also filed Notices of Preliminary Objection challenging the competency of the Suit on the ground inter alia that the Appellant lacked locus standi to institute same and the Court had no jurisdiction.

In his Judgment delivered on 8/12/2015, the learned trial Judge, Anyadike, J., upheld the said Objections, and concluded as follows –

The reliefs against 1st – 3rd Defendants center on pre-primary election matters and which is entirely the affairs of the 1st Defendant and not justiciable before this Court and as such I lack Jurisdiction to entertain the reliefs sought against the 4th Defendant which is only ancillary. On the above Principal (sic), the Objections of the 1st and 3rd Defendants are hereby sustained. Since the Plaintiff lacks locus standi to approach the Court in the first place, and since the matter is not justiciable coupled with the fact that this

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Court lacks Jurisdiction to entertain same, the matter ends there and there is no need to look into the merits.

The Appellant appealed, but the Court of Appeal dismissed his Appeal, and in its Judgment delivered on 7/12/2017, it also explained that –

The issue of locus standi is a condition precedent to the determination of a case on merit. Where a Plaintiff has no locus standi to bring a Suit, the Suit becomes incompetent and the Court lacks jurisdiction to entertain it, the only Order to make in the circumstance is that of dismissal – – The Appellant did not participate in the Primaries conducted by the 1st Respondent for the election of a candidate to represent it at the Gubernatorial election for the Governorship of Zamfara State Having not participated in the Primaries, the Appellant cannot come within the ambit of the provisions of Sections 156 and 87(9) of the Electoral Act. 2011. The lower Court could only be seised of jurisdiction to adjudicate on the Suit filed by the Appellant if he had participated in the Primaries conducted by the 1st Respondent — The decision arrived at by the learned trial Judge is unassailable.

The Appellant has now appealed to this

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Court with a Notice of Appeal containing three Grounds of Appeal. The Parties filed their respective Briefs of Argument, but the fourth Respondent also raised a Notice of Preliminary Objection “contesting the competence of this Appeal on the ground that the Appeal is statute barred”, in its Brief of Argument.

The position of the law is that a Preliminary Objection must be taken first before determining the merit of an Appeal since its purpose is to terminate hearing of an Appeal in limine either partially or totally S.P.D.C.N. V. Amadi (2011) 14 NWLR (Pt. 1266) 157, Mohammed & Anor V. Olawunmi & Ors (1990) 4 SCN123. In other words, the Court should first consider a Preliminary Objection raised during an Appeal, as a successful Preliminary Objection may have the effect of disposing of the Appeal – FBN V. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt. 1216) 247.

In this case, the fourth Respondent by its Objection is saying that this Appeal is statute barred as it was filed outside the time prescribed in Section 285(11) of the Constitution, as altered by the 4th Alteration Act No. 21, 2017 that took effect from 17/6/2018 and provides that:<br< p=””

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An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the Judgment appealed against.

It pointed out that Appellant filed his Notice of Appeal on 12/1/2018, one month and five days after Court of Appeal delivered its Judgment, and citing Marwa V. Nyako (2012) 6 NWLR (Pt. 1296) 200, wherein this Court held that “the time fixed in the Constitution is like the Rock of Gibraltar, it never shifts”, it urged this Court to dismiss the Appeal.

It also submitted, citing Hassan V. Aliyu (2010) 17 NWLR (Pt. 1223) 547, Salim V. CPC (2013) 6 NWLR (Pt. 1351) 501, Wambai V. Donatus (2015) All FWLR (Pt. 752) 1673, Gwede V. INEC (2014) LPELR- 23763 (SC) and INEC V. Ogbadibo Local Government & Ors (2015) LPELR-24839(SC), that pre-election matters are sui generis and time is of the essence; and that it is trite that where a Party files an appeal out of time, it is considered stale and cannot be resolved by the Court.

The Appellant argued in his Reply Brief that as good as the cases cited are for what they decided, they are not relevant in this Appeal, as Fourth Respondent failed to interrogate the

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date the 4th Alteration providing the said Section 285(11) of the Constitution became law viz the date the Court below gave Judgment as well as date of filing this Appeal in this Court; and that it also failed to interrogate whether that provision is stated to have a retrospective or retroactive application.

He further argued that the said provision having not been stated to have retrospective application and having become law more than six months after the decision appealed against, will not have any effect on the competency or otherwise of this Appeal as anything to the contrary will be unjust, irrational and even unconscionable on the part of the law makers for a person to suffer a constitutional disability that never existed at the time he filed an appeal, citing Hope Democratic Party V. Peter Obi & 5 Ors. (2012) ALL FWLR (Pt. 612) 1620 at 1634. He also cited Adesanoye V. Adewole (2000) FWLR (Pt. 14) 2387 on the general principles governing the retrospective operation of a statute.

To be clear, the Issue in this Appeal is whether the amendment to Section 285 of the 1999 Constitution by the said 4th Alteration Act, affects substantive law or it

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affects purely procedural matter because there is a marked difference between them in terms of consequences.

The general principle is that if the provision of the amendment is an enactment of substantive law then the operation thereof cannot be retrospective and must be prospective. However, if the amendment is a matter of procedure then in that case its operation is retrospective.

A law is said to be “prospective”, as opposed to “retrospective”, when it is applicable only to cases that will arise after its enactment. Whilst a retrospective law is one that is to take effect, in point of time, before it was passed. There is a presumption that the Legislature does not intend what is unjust, so Courts lean against giving certain statutes retrospective operation. They are construed as operating only in cases or on facts, which come into existence after the statutes were passed, unless a retrospective effect is clearly intended see Afolabi V. Gov., of Oyo State (1985) 2 NWLR (Pt. 9) 74 SC. See also Maxwell on the Interpretation of Statutes, 12th Ed., wherein it is stated as follows –

Perhaps no rule of construction is more firmly

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established than thus that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to [its] language. If the enactment is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has – – two aspects, for it, “involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation that its language renders necessary”.

In Francis Bennion’s Statutory Interpretation 2nd Ed., it is stated thus:

The essential idea of legal system is that current law should govern current activities. Elsewhere in this particular work, a particular Act is likened to a floodlight switched on and off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow’s backwards adjustment of it.

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Such, we believe, is the nature of law – – The true principle is that lex prospicit non respicit (law looks forward not back). As Willies, I., said retrospective legislation is “contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transaction carried on upon the faith of the then existing law”.

However, in as much as an appellate Court cannot take into account a new law, brought into existence after the Judgment appealed against has been rendered, because the rights of the litigants are determined under the law in force at the date of the Suit; matters of procedure are different, and the law affecting procedure is always retrospective see Ojokolobo V. Alamu (1987) 3 NWLR (Pt. 61) 377 at 396-397 SC, wherein this Court per Bello, ON., observed as follows on this issue

it is a cardinal principal of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural

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matters and does not affect the rights of the Parties.

After reviewing some English authorities, he concluded as follows

[The] decisions seem to me to show that a statute making provisions for “time” within which judicial proceedings can be taken is retrospective. I cannot see any good reason why a statute prescribing the time within which a Court should dispose of proceedings ought not be so construed. The fact that the time limit prescribed by Section 258 is a constitutional provision cannot be a valid reason because we have been applying the ordinary rules of interpretation of statutes in the interpretations of the several provisions of our Constitutions past and present.

In The Ydun (1899) 236, which Bello, CJN., considered in Ojokolobo V. Alamu, the Court held that the Act [Public Authorities Protection Act], which provided that an action for negligence against any public officer must be commenced within 6 months next after an act complained of, was an Act dealing with procedure only and applied retrospectively. Vaughan Williams L. J. stated as follows at page 246 of the Report

I also agree that the Act is retrospective, for though, no

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doubt, the general rule of construction is that “nova constitutio futuris forman imponere debet non praeteritis.” It is pointed out in Moon v. Dirden (1) that rule of construction yields to a sufficiently expressed intention of the Legislature that the enactment shall have a retrospective operation, and there is abundant authority that the presumption against a retrospective construction has no application to enactments which affect only procedure and practice of the Courts.

He also relied upon the observation of Lord Alverstone, CJ., in The King v. Dharma (1905) 2 K.B 335 at 338, on the issue of “time”, as follows –

The rule is clearly established that apart from any special circumstances appearing on the face of the statute – – statutes which make alterations in procedure are retrospective. It has been held that a statute shortening time within which proceedings can be taken is retrospective (2) The Ydum – – and it seems to me that it is impossible to give any good reason why a statute extending the time within which proceedings may be taken should not also be held to be retrospective. If the case could have been brought

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within the principle that unless the language is clear a statute ought not to be construed so as to create new disabilities or obligations, or impose new duties in respect of transactions which were complete at the time when the Act came into force. Mr. Smith would have been entitled to succeed; but when no new disabilities or obligation has been created by the statute, but it only alters the time within which proceedings may be taken, it may be held to apply to offences completed before the statute was passed. That is the case here. This statute does not alter the character of the offence, or take away any defence which was formerly open to the prisoner. It is a mere matter of procedure, and according to all the authorities it is, therefore, retrospective.

So, alterations in procedure are retrospective, and more importantly, as far as this Appeal is concerned, statutes shortening or extending time within which proceedings may be taken, is retrospective see Ojokolobo V. Alamu (supra), decided by a full Panel of seven Justices of this Court, wherein this Court made that point abundantly clear.

Applying the rule of stare decicis, and guided by the

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principle confirmed in Ojokolobo V. Alamu (supra), this Court took a firm stand on the effect of the said 4th Alteration Act and struck out some Appeals relating to pre-elections matters in respect of the 2015 Elections, and these include Appeal No SC.308/2018: Obayemi Toyin V. PDP & Ors, struck out on 18/1/2019, and the following struck out on 23/1/2019:

– SC.1058/2018: Senator Atai Aidoko V. Air Vice Marshall Isaac M. Alfa,

– SC.1018/2018: Hon. Sabo Nakudu & Anor V. Alh. Musa Suleiman & Anor,

– SC.826/2018: Joseph Irimagha V. Randolph I. O. Brown & 2 Ors, and

– SC.1246/2018: Hon. Olujide Adewale Lawrence V. Hon. Sumbo Olugbemi.

As it is, this Appeal must suffer the same fate because the Appellant filed his Notice of Appeal in this Court outside the period of 14 days, prescribed in Section 285 (11) of the Constitution, as altered by the 4th Alteration Act No. 21 of 2017, which makes it a retrospective law.

The Preliminary Objection raised by the fourth Respondent is sustained, and this Appeal, being statute barred, is hereby struck out. The Parties shall bear their respective costs.

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SC.125/2018