Independent National Electoral Commission V Ogbadibo Local Government & Ors (2015)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
This appeal is against the judgment of the Court of Appeal, Makurdi Division (hereinafter referred to as “the court below”) delivered on 13/2/2014, which affirmed the judgment of the Federal High Court, and Makurdi (hereinafter referred to as “the trial court delivered on 26/6/2012. The court below upheld the decision of the trial court and dismissed the appellant’s appeal. It held, inter alia, that the trial court had jurisdiction to entertain the suit and that the respondents herein are vested with the necessary locus standi to institute the action at the trial court and that there is “continuance in the oppression” of Otukpa State Constituency.
Aggrieved by the decision of the court below, the Appellant filed a Notice of Appeal on 1/4/2014 containing 6 grounds of appeal. I sha1l come to this anon, but for better understanding of this matter, I shall expose, in summary, the facts that gave rise to this appeal.
The Respondents commenced their action at the Federal High Court, Abuja on 25/10/2011 against the Appellant. The suit was subsequently transferred to the Federal High Court Makurdi and registered as suit No.FHC/MKD/CS/17/2012. In the suit, the respondents herein raised 6 questions and prayed for the following 4 reliefs:
“1. A declaration that the Benue State House of Assembly is not properly constituted or composed as required by Sections 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria.
- A declaration that having regard to the provision of Section 91 and 112 of the 1999 Constitution of the Federal Republic of Nigeria the defendant acted improperly and unfairly in refusing or failing to include the suppressed OTUKPA State Constituency in Ogbadibo Local Government Area among the names of the suppressed state constituencies it forwarded to the National Assembly for approval for restoration.
- An order directing the respondent to comply with the provisions of Section 91 and 112 of the Constitution of the Federal Republic of Nigeria 1999 by Restoring the suppressed OTUKPA state constituency in Ogbadibo Local Government Area, Benue State to bring the composition of the Benue State House of Assembly in line with the provisions of the Constitution.
- An order of the Court directing or compelling the dependant to restore the suppressed OTUKPA state constituency in Ogbadibo Local Government Area.”
The Originating Summons was supported by a 7-paragraphs affidavit and a number of documents annexed as exhibits A – E. The Appellant, in reaction to the Respondents’ originating processes, filed a Notice of Preliminary objection wherein it contended that the jurisdiction of the trial court to entertain the suit was statute barred, having not been instituted within three months after the accrual of the cause of action. It is contended therefore that the suit was incompetent.
In his considered judgment of 26/6/2012, the learned trial judge dismissed the Appellant’s Preliminary Objection and held that the complaints of the Respondents is a continuous act which removes the protection granted by Section 2(a) of the Public Officers Protection Act. The court further granted all the reliefs sought by the Respondents.
Aggrieved by the judgment of the learned trial judge, the Appellant filed its Notice of appeal on 19/7/2012, which was amended and filed on 14/11/2012. It contained 6 grounds of appeal.
After hearing argument from both parties, the Court of Appeal delivered its judgment on 13/2/2014, wherein it affirmed the decision of the trial court and dismissed the Appellants’ appeal.
Dissatisfied, the appellant has further appealed to this court vide its 6 grounds of appeal out of which the following 6 issues have been raised for determination:
“Issue No. 1
Whether the Court of Appeal was right in holding that the respondents satisfied the requrements of the law on locus standi and therefore clothed with the necessary locus standi to institute the action (Ground 1).
Issue No. 2
Whether the Appellant is not protected by Section 2(a) of the Public Officers Protection Act having regard to the circumstances of this case. (Ground 2)
Issue No. 3
Whether the Court of Appeal was right in holding that Exhibits A, B and C are admissible in evidence and their usage cannot be faulted. (Ground 3).
Issue No. 4
Whether the Court of Appeal was right in relying on its judgment in the case of Oju Local Government v. INEC (2007) 14 NWLR (Pt 1054) 242 having regard to the circumstances of this case (Ground 4).
Issue No. 5
Whether the Court of Appeal was correct to require the Appellant to proffer legal argument by affidavit evidence in the circumstances of this case. (Ground 5).
Issue No. 6
Whether the Court of Appeal was correct when it held that there were sufficient materials for grant of declaratory reliefs in the circumstances of this case. (Ground 6).”
In their brief of argument, the Respondents adopt the issues raised by the Appellant and argue same seriatim.
On the 21/4/2015, when this appeal was heard, neither the Appellant nor its counsel was in Court to argue the appeal. The Court registrar confirmed the record of the Court to the effect that the learned counsel for the Appellant I.K. Bawa Esq. was present in Court on 17/12/2014 when the appeal was adjourned to 21/4/2015 for hearing. In the circumstance, in view of the provision of Order 6 Rule 6 of the Rules of this court, 2009; the appellant’s brief of argument filed on 11/8/2014 was deemed as having been argued, and same shall be considered in this judgment.
On the other hand, learned counsel for the Respondent, John Ioryina Esq. was in court. He identified the brief of the Respondents dated and filed on 20/10/2014. Without further amplications on the six issues distilled for determination of the appeal, he adopted the brief and urged this court to dismiss the appeal and uphold the concurrent decisions of the two courts below.
On issue No. 1, the Appellant both at the trial court and court below had contended that the Respondents did not satisfy the requirements of the law on the issue of locus standi and argue therefore that they have no necessary locus standi to have commenced the action that culminated in this appeal. He cited the 1st Respondent as a Local Government Council which has no right to vote at an election, cannot claim to have a right to do so. It is argued that the creation of constituencies is not made for the benefits of the Local Government Council but for the population that meet constitutional requirements. That as for the 2nd and 3rd Respondents, chairman and vice-chairman respectively of the 1st Respondent, they failed to state their respective interest or locus in the 7 paragraphs affidavit in support of the Originating Summons deposed to by one Michael Omikpa on behalf of the Respondents. Learned Counsel has further submitted that mere description of the Respondents in relation to offices they occupied at one time or the other without more, will not and cannot donate locus standi to them. Reliance was placed on the case of ADESANOYE v. ADEWOLE (2007) 1 FWLR (Pt.353) 856 at 884 and AJAYI v. ADEBIYI (2012) 11 NWLR (Pt 1310) 137 at 175 – 176, on the guiding principle in determining whether a person has locus standi or not.
In view of the foregoing decisions of this court on this issue, and the fact that the affidavit in support of the originating process did not in any way disclose sufficient interest in favour of the Respondents, this court is urged to resolve this issue in favour of the Appellant.
Responding to issue No.1, learned counsel for the Respondents submitted that the Appellant neglected or failed to counter the averments in the Respondents’ affidavit in support of the Originating Summons at the trial court but only opted to raise a preliminary objection, as they have strongly held unto even in this court. That the findings of the two courts below are concurrent and since the Respondents have not shown the findings to be either perverse or that there is a substantial error in the substantive or procedural law which if not corrected will lead to a miscarriage of justice, this court should not interfere. Reliance was placed in the cases of AKINSANYA v. UBA LTD (1986) 4 NWLR 12 (Pt 35) 273, ANIMASHAUN v. OLOJO (1990) 6 NWLR (Pt 154) 111, HILARY FARMS LTD v. M/V. “MAHATRA” (2007) 14 NWLR (Pt 1054) 210 at 233.
It is further submitted that the argument of the Appellant on this point is totally misconceived and should be discountenanced on the following grounds: Firstly, because the right to vote is not co-extent to the right to have a suppressed state constituency reinstated as applicable to 1st respondent in this appeal. It is the submission of the learned counsel that the Respondents did show their interest in the action by strongly presenting the following evidence in their Affidavit in support of their Originating Summons. These are paragraphs:
“(c) That it was in 1996 that Otukpa State Constituency was excised and suppressed. That Otukpa State
Constituency exists intact as it was then in the present Ogbadibo Local Government Area of Benue State.
(d) That the 3rd plaintiff is the vice-Chairman of Ogbadibo Local Government Area Council whiles the 4th plaintiff is the member representing Ogbadibo Local Government Area in the Benue State House of Assembly and 5th plaintiff the Hon. Member representing Okpokwu, Ado and Ogbadibo Federal Constituency at the Nigeria House of Representative.
(e) While the 7th plaintiff who is the erstwhile national chairman of the People Democratic Party of Nigeria (PDP), was the 1st representative of the suppressed Otukpa Constituency in the Benue State House of Assembly in 1979 and was subsequently succeeded in that position by the 8th and 9th plaintiffs. The 6th, 10th, 11th and 12th plaintiffs are the community leaders of the suppressed Otukpa State Constituency.
(f) That the defendant is the Statutory Body created by the 1999 Constitution of the Federal Republic of Nigeria with powers to divide every state in the Federation into such number of State Constituencies as is equal to three or four time the number of Federal Constituencies within a state.
(g) That the defendant is also vested with powers to delineate state constituencies, organize, undertake, conduct and supervise all elections to the House of Assembly of each State of the Federation.”
It is the submission of the learned counsel for the Respondents that it was from the established principle of law on the vexed question of locus standi in the case of AJAYI v. ADEBIYI (Supra) and the averments of the Respondents in their affidavit in support of the Originating Summons, the court below concluded that the Respondents have the legal capacity to institute the action. In the light of the foregoing, this court is being urged to dismiss the preliminary objection.
Locus standi is a Latin term or expression. It denotes the plaintiff’s capacity to sue in a court of law to enforce a legal right. Once the plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in Writ of Summons and Statement of Claim and in an action commenced by Originating Summons (as in the instant case) in the averments in the affidavit in support of the summons, the plaintiff would be adjoined to have shown sufficient interest which entitles him to sue on the subject matter. Chances of success of an action are not relevant consideration: see Taiwo v. Adegboro (2011) 11 NWLR (Pt.1159) 562.
For a party to establish locus standi, he must show that the matter is justiciable – capable of being disposed of judiciously in a court of law and the existence of dispute between parties. See Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137.
The Appellant had contended both at the trial and court below that the Respondents did not satisfy the requirements of the law on the locus standi and therefore not vested with necessary locus standi to have commenced this action. In other words, that the Respondents failed to establish by their affidavit evidence that their locus standi to initiate the suit at the trial court. The Respondents have referred to the totality of their averment particularly paragraph 3(c) – (e) and (g), and urged vehemently that they have disclosed in those paragraphs that they have a right or vested interest to protect and enforce legally.
I have endeavored to reproduce those paragraphs earlier. These are also culled verbatim on page 524 of the record of appeal. The Appellant has not contradicted, challenged or controverted the facts in those paragraphs. I cannot but hold that the Respondents have demonstrated and shown that they have vested interests in seeing to the restoration of the alleged “suppressed constituency”. Most of the Respondents are political and community leaders of the electoral district. Locus standi is a concept that has been misunderstood and misapplied by our courts as an impediment, which sometimes works injustice to deny access to justice to the citizens. The Appellant’s stand here is one such example.
Given all the foregoing circumstances and closely guided by the guidelines in a plethora of cases of this court particularly in AJAYI v. ADEBIYI (supra); ADESANYA v. THE PRESIDENT (1981) NCCC vol.12, 146 at 160; TAIWO v. ADEGBORO; ADESANOYE v. ADEWOLE (2006) 14 NWLR (Pt.1000) 242, I am of the firm view that the Respondents have established locus standi to sue. They have discharged the onus on them to establish same.
Issue No. 2, as raised by the appellant herein, challenges the competence of Respondents’ suit, which the Appellant has contended that by virtue of Section 2(a) of the Public Officer’s Protection Act Cap P.41, Laws of the Federation of Nigeria 2004, the Respondents suit is statute-barred.
It is the contention of the learned counsel for the Appellant that the court hearing found that the difference between the time the Otukpa State constituency was excised and suppressed and the time of coming into life of the action was about 15 years (period in excess of the three months) the Act allocated for commencement for any act against the public officer, the lower court for this fact alone should not have proceeded to hold that there is continuance in the suppression of the said Otukpa state constituency.
That there was no paragraph in the Respondents affidavit in support of originating summons which disclosed any fact as to continuance in the suppression of Otukpa state constituency. It is submitted the court below arrived at a perverse decision on this issue.
In other words, it is the contention of the appellant that the Court below having found that the Respondents commenced their joint action against the Appellant months in excess of the 3 months the Act allowed for commencement of proceedings for any act, neglect or default against any wrong-doing, the court ought to have dismissed the suit of the Respondents. Relying on the case of ATTORNEY-GENERAL RIVERS STATE v. ATTORNEY-GENERAL BAYELSA STATE (2013) 3 NWLR (Pt.1340) 123 at 148, and AREMO II v. ADEKANYE (2004) All FWLR (Pt.224) 2113 at 2132. Learned counsel has submitted that assuming without his conceding that there is any continuance of damage or injury occasioned by the Appellant against the Respondents, same must be pleaded or averred in the affidavit in support of the originating summons and the court must take oral evidence before determining the issue. It is submitted that the Court below simply imagined continuance of damage in favour of the Respondents against the clear evidence before the court even as deposed to by the Respondents themselves that the cause of action arose in 1999 in paragraph 3(c) of the affidavit in support of the summons; and that there was no averment in any paragraph of the affidavit stating any damage at all, let alone such being continuous. In the light of the foregoing, the learned counsel has urged this court to hold that the court below erred in law when it imported continuance of damage to defeat the essence of the Public Officer’s Protection Act (supra).
It is the submission of the learned counsel for the Respondents, on this issue, that the court below correctly held that the time for the institution of the action by the Respondents had not elapsed, or expired as this could only expire on the cessation of the alleged wrong, that is, the suppression of Otukpa State Constituency. He submitted that the Respondents’ suit at the trial court and court below was an Originating Summons for the interpretation of Sections 9 and 112 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). That the statutes of limitations do not apply to litigation on interpretation of constitutional provisions. Reliance was placed on cases AREMO v. ADEKANYE (supra) and ATTORNEY-GENERAL PLATEAU STATE v. ATTORNEY-GENERAL OF THE FEDERATION (2006) 3 NWLR (Pt.467) 346.
It is further submitted that the Appellant acted illegally and unconstitutionally and these acts as clearly confirmed by the two courts below deprived the appellant of the protection of Section 2(a) of the Public Officers Protection Act (supra).
This court is urged not to disturb the concurrent findings of the two lower Courts on this issue.
In issue No.1, I have expressed the view that the Respondents have shown they were fully interested in the subject matter before the trial court, but coming to the second issue, the question is whether the Respondents have not failed to bring their action within the time stipulated by law. They are confronted by Section 2(a) of the Public Officers Protection Act Cap. P.14 Laws of the Federation 2014. It states:
“2. where any action, prosecution, or other proceeding is commenced against any person for any act due in pursuance or execution or intended execution of act or law or of any public duty or authority, or in respect of any alleged right or default in the execution of any such act, law, duty or activity, the following provision shall have effect:
Limitation of time:
(a) The action, prosecution or proceeding shall not lie 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 ceasing thereof”.
It is the contention of the Appellant that the Respondents’ suit is statute-barred by virtue of Section 2(a) of the foregoing Law.
The Court below in its judgment at page 529 – 530 of the records, in trying to reconcile the provision of this statute of limitation with the averment of the Respondents in paragraph 3(c) of the affidavit in support of the originating summons, stated the law as follows:
“It can be discerned from the provision that the time frame for institution of any action regarding any act against a public officer is three months. As can be garnered from paragraph 3(c) of the affidavit, contained on page 9 of record, “it was in 1996 that Otukpa State Constituency was excised and suppressed.” As evidenced from the terminus (sic) of the affidavit, the respondents’ suit was commenced on 25/10/2011.. in keeping with the orthodox judicial method for ascertaining statute-bar, I have married the time the constituency was suppressed, id est, 1996, with the time of coming into life of the action. By simple arithmetical and lunar computation, the difference between the two dates is about 15 years. Indisputably, that period is months in excess of the three months the Act allocated for commencement of proceedings for any act, neglect or default against any wrong doer”.
It is the contention of the learned counsel for the Appellants that the court should have stopped after the foregoing findings. Yes indeed, I cannot fathom the reason why the court below made sudden u-turn and stated that there is a continuance in the suppression of Otukpa state constituency.
There is no paragraph in the Respondent’s affidavit in support of the summons which disclosed any fact as to continuance in the suppression of the constituency. The court having found that constituency was excised and suppressed in the year 1996 and without any further affidavit evidence on record, disclosing continuous damage, failed to be guided by a number of judicial authorities of this court on statute of limitation thereby arriving at a perverse decision on this issue. Paragraph 3(c) of the Respondents’ affidavit in support of the originating summons as earlier reproduced above disclosed in plain terms that “it was in 1996 that Otukpa State Constituency was excised and suppressed”, but the Respondents commenced their action on 25th October, 2011 that is 15 years in excess of three months the Act allows for commencement of proceedings.
I must state here that the limitation Law does generally either of two things; it either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right whichever effect it has will depend on the particular statute. However, there is a general consensus that all limitation laws have the effect of closing the doors of the court against the plaintiff.
The essence or effect of the Public Officers Protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2(a) of the Act. Thus, where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused. See AREMO v. ADEKANYE (supra), BATTISHEE v. REED (1856) 18CB.69C at 714.
It is submitted by the Respondents’ counsel that the lower court, after examining carefully the exception in the limitation law, correctly stated that there is a continuance of change that is the unchallenged affidavit that there is the continuance in the suppression of Otukpa state constituency and that at the time of commencement of the action by the respondents, it had not elapsed. At the risk of repetition, this position taken by the Respondents cannot be correct in view of the obvious fact averred in paragraph 3(c) of the Respondents’ affidavit in support of the originating summons (supra). The issue is now trite as it has been demonstrated in a number of decisions and dicta of this court and other jurisdictions. I find them quite illuminating and worthy of ponder. In ATUNRASE v. SUNMOLA (1985) 1 NWLR (Pt.1) 105 at 120, this court giving reasons why persons with good causes of action should pursue them with reasonable diligence, this court stated thus;
“In all actions, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement to believe that he has lived (sic) or abandone his right.”
It was Abbott C.J in BATTLEY v. FAULKNER 106ER, 668 at 670 who had this to say:
“The statute of limitation was intended for the relief and quiet of the defendants and to prevent persons from being harassed at a distant period of time after the committing of the injury complained of.”
In the case of BOARD OF TRADE v. LAYSER IRVINE & CO. LTD (1927) A.C. 610 at 628, Lord Atkinson said:
“The whole purpose of the limitation Act is to apply to person who have good causes of action which they could if so disposed, enforced and to deprive them of power of enforcing them after they have lain by for a number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use.”
This court, in the case of AJAYI v. ADEBIYI (supra) on the essence of statute of limitation stated as follows:-
“The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period, offends the provisions of the law and not give rise to a cause of action. The yardsticks to determine whether an action is statute-barred are:
(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues.”
Also, see the Apex Court decision in Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Part 1329) 309 and MERCANTILE BANK (NIGERIA) LTD. v. FCTECO LTD (1998) 3 NWLR (Pt.540) 143 at 156.
It was Aniagolu JSC (of blessed memory) who in LASISI v. A.G. Oyo State (1982) 4 SC at 56 who, when referring to the limitation provision in the Public Lands Acquisition Law, put the issue more succinctly thus:
“The two Law Lords could not, by their pronouncements quoted in the minority judgment, be understood in all fairness to them to be advocating that the courts should ride rough shod of statutory periods of limitations by reason only of otherwise arguable facts having been placed on joinder of issues. What is there to try when the statute has provided that the period allowed for bringing an action in which those facts which have been in issue has expired
Absolutely nothing.”
It is clear from the above judicial views on the basis of limitation law, once a defence of limitation of time is stated and grounded in the averments in support of the summons, (as in this case at hand) and it is established, this bars the plaintiff’s remedy and extinguishes the right of his action; then the Court will wash off its hands and decline to entertain the action. This in effect means that there is absolutely no basis for prying into the conduct of the Appellant howsoever which gave rise to the action, even as being suggested here by the learned counsel for the Respondents. See AMADI v. NNPC (2000) 6 SC (Pt.1) 66; INAKOJU v. ADELEKE (2007) 4 NWLR (PT.1025) 423.
In the light of the foregoing, I resolve this issue in favor of the Appellant, and set aside the findings of the two courts below on this issue, and accordingly strike out the suit.
However, where the hands of the court is tied, as in the circumstance of this case, which disallows it to go into the merit of the case, it is not unusual for this court to make such passing remarks as this, which works and pricks the conscience of the affected party. In this wise; in exercise of its numerous statutory functions, some of which are delineation and creation of State and Federal Constituencies, may the Respondents’ alleged “suppression” of their State Constituency be fairly looked into along with other ones in the country, calling for Appellant’s attention. I say no more and make no order as to cost.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother, GALADIMA, JSC just delivered.
I agree with his reasoning and conclusion that the appeal has merit and should be allowed.
The lower court, at pages 529 – 530 of the record found as a fact as follows:-
“It can be discerned from the provision that the time frame for institution of any action regarding any act against a public officer is three months. As can be gleaned from paragraph 3C of the affidavit, contained at page 9 of the record, it was in 1996 that ‘Otukpa State Constituency was excised and suppressed’. As evidenced from the terminus of the affidavit, the respondents’ suit was commenced on 25/10/2011. In keeping with the orthodox judicial method for ascertaining statute-bar, I have married the time the constituency was suppressed id est, 1996, with the time of coming into life of the action. By simple arithmetical and lunar computation, the difference between the two dates is about 15 years. indisputably, that period is months in excess of the three months the Act allotted for commencement of proceedings for any act, neglect or default against any wrong doer.”
The above finding cannot be faulted on the facts and the applicable law i.e Section 2(a) of the Public Officers Protection Act, Cap P.41 Laws of the Federation of Nigeria, 2004. Having come to the conclusion supra, the lower court ought to have terminated the proceedings at that stage but it did not. The court went further to hold at pages 530 – 531 of the record, erroneously in my view, that there was continuance of the wrong of suppression of Otukpa State Constituency of Benue State thereby keeping the cause of action alive. There is, however, no affidavit evidence in support of the court’s finding that there was continuance of the wrong done to the respondents.
It is settled law that a limitation law, such as the provisions of Section 2(a) of the Public Officers Protection Act, takes away the legal right of a litigant to enforce an action leaving him with an empty shell of a cause of action where the action is not instituted within the time frame enacted in the statute of limitation. Where the action is instituted outside the time so allotted by the statute, we say that the action so instituted is statute-barred and cannot be maintained since it robs the court of the jurisdiction to entertain and determine same.
It is for the above and the more detailed reasons assigned in the lead judgment of my learned brother, GALADIMA, JSC that I too find merit in the appeal and allow same.
Since the action was statute-barred at the time of its institution, the proper order is that of striking same out. Consequently, suit No. FHC/MKD/CS/17/2012 is hereby struck out for being incompetent.
I abide by the other consequential orders made in the said lead judgment including the order as to costs.
Appeal allowed.
SC.309/2014
