CORAM
Emmanuel Akomaye Agim JSC
PARTIES
CHIEF IKIE AGHWARIANOVWE
APPELLANTS
1. PEOPLES DEMOCRATIC PARTY
2. OBOREVWORI SHERIFF FRANCIS OROHWEDOR
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant and the 2nd Respondent both contested the 1st Respondent’s primary election for the nomination of its gubernatorial candidate for Delta State ahead of the 2023 general elections. At the conclusion of the primary election, the 2nd Respondent emerged victorious with 597 votes, while the Appellant scored zero. Dissatisfied with the outcome of the primary election, the Appellant instituted Suit No. FHC/WR/CS/32/2022 between: CHIEF IKIE AGHWARIANOVWE V. PDP & 9 ORS, praying that the Court disqualifies the 1st Respondent from fielding any candidate in the Delta State gubernatorial election. The suit was dismissed by the trial Court, and so was the Appellant’s appeal. In addition to dismissing the appeal, the Court of Appeal adjudged the appeal as an abuse of Court process and awarded costs of N9 million against the Appellant. The Appellant further appealed to this Court against the decision of the lower Court, but discontinued same by filing a Notice of Discontinuance. On 13th October, 2022, the Appellant commenced the suit culminating in the instant appeal by virtue of a Writ of Summons and Statement of Claim. This time, the claim of the Appellant was that the 2nd Respondent was not qualified to contest for the office of Governor of Delta State by reason of having provided false information in support of his constitutional requirements to contest for the office. The trial Court gave judgment in favour of the Respondents and the Court of Appeal re-affirmed the decision. Aggrieved by the decision, the Appellant filed the instant appeal.
HELD
Appeal dismissed
ISSUES
1. Whether the Court below rightly affirmed the decision of the trial Court upholding the preliminary objections of the 1st and 2nd Respondents?
2. Whether the Honourable Justices of the Court of Appeal were right in affirming the decision of the trial Court that the Appellant has not proved false information against the 2nd Respondent under Section 29(5) and (6) of the Electoral Act, 2022?
RATIONES DECIDENDI
STATUTE BAR – WHEN AN ACTION IS DEEMED STATUTE BARRED
When a suit is statute-barred, it is barred by the provisions of a statute, or in this case, the Constitution. In simple terms, a suit is statute-barred if it is brought outside the time limit for the institution of that type of action by the Constitution or a statute. Any action brought outside the prescribed time is futile, fruitless and incompetent and the Court would consequently lack the jurisdiction to entertain same. See WALI V. A.P.C. (2020) 16 NWLR (PT. 1749) 82; GARBA V. A.P.C. (2020) 2 NWLR (PT. 1708) 345; ACN & ANOR V. INEC & ORS (2013) LPELR – 20300 (SC); SULGRAVE HOLDINGS INC. V. F.G.N. (2012) 17 NWLR (PT. 1329) 309; NASIR V. C.S.C., KANO STATE (2010) 6 NWLR (PT. 1190) 253. In determining whether an action is statute-barred, judicial precedents have laid down three yardsticks to assist the Court. They 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; and (c) Period of time prescribed to bringing an action to be ascertained from the statute in question. See USENI V. ATTA (2023) 8 NWLR (PT. 1887) 519; BESONG V. OCHINKE (2023) 7 NWLR (PT. 1884) 545; IDACHABA & ORS V. UNIVERSITY OF AGRICULTURE, MAKURDI & ORS (2021) LPELR – 53081 (SC); AJAYI V. ADEBIYI (2012) 11 NWLR (PT. 1310) 137. – Per Adamu Jauro, JSC
STATUTE BAR – YARDSTICKS IN DETERMINING IF AN ACTION IS STATUTE BARRED
The pertinent consideration at this juncture is when the cause of action accrued. The term “cause of action” has been defined in several decisions of this Court. It has been defined as the factual situation stated by the Plaintiff, which if substantiated, entitles him to a remedy against the Defendant; it consists of the aggregate of facts which entitles a Plaintiff to sue a Defendant in Court; it has also been defined as the fact or facts which establish or give rise to a right of action. See OKO V. A.G., EBONYI STATE (2021) 14 NWLR (PT. 1795) 63; OWODUNNI V. REG. TRUSTEES OF CCC (2000) 10 NWLR (PT. 675) 315; SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT. 174) 379. A cause of action accrues when the action giving rise to the incident occurs. In other words, a cause of action accrues or arises the moment the action of the Defendant which the Plaintiff complains about in the suit takes place. See KARSHI V. GWAGWA (2022) 9 NWLR (PT. 1834) 139; OJUKWU V. YARADUA (2009) 12 NWLR (PT. 1154) 50; ADEKOYA V. F.H.A. (2008) 11 NWLR (PT. 1099) 539. – Per Adamu Jauro, JSC
PRE-ELECTION – THE LIMITATION PERIOD FOR BRINGING A PRE-ELECTION MATTER
As I have earlier stated, an action is statute barred if it is beyond the time limit stipulated by the Constitution or a statute for bringing that specie of action. There is no doubt or argument that the Appellant’s suit is a pre-election matter. The limitation of time for bringing a pre-election matter is provided for in Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which is hereunder reproduced: “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”. – Per Adamu Jauro, JSC
STARE DECISIS – THE CONDUCT OF COURTS IN APPLYING THE PRINCIPLE OF STARE DECISIS
…let me restate the trite position of the law that the doctrine of stare decisis or judicial precedent is not to be blindly applied. A Court will not follow an otherwise binding decision where the facts of the said decision are different or dissimilar from the case under consideration. A case is only an authority for what it decides and principles of law established in any given case are only applicable and binding within the peculiar facts and circumstances of that case. See ALIYU V. NAMADI & ORS (2023) LPELR-59742 (SC); ANYAKORAH V. PDP & ORS (2022) LPELR – 56876 (SC); DANTIYE V. A.P.C. (2021) 18 NWLR (PT. 1808) 381; INTERDRILL (NIG.) LTD. V. U.B.A. PLC (2017) 13 NWLR (PT. 1581) 52. – Per Adamu Jauro, JSC
ELECTION – CONDITIONS FOR A PERSON TO BE QUALIFIED FOR ELECTION TO THE OFFICE OF A GOVERNOR
Section 182(1)(j) of the Constitution as well as Section 29(5) and (6) of the Electoral Act. The provisions are set out below: Section 182(1)(j) of the Constitution:
“No person shall be qualified for election to the office of Governor of a State if –
(j) he has presented a forged certificate to the Independent National Electoral Commission’ Section 29(5) and (6) of the Electoral Act:
“(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.
(6) Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election”.
It is patently clear that for a person to succeed in an action pursuant to Section 29(5) and (6) of the Electoral Act, he must be an aspirant who participated in the primary election of the party and he must have reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election, is false. The affidavit referred to is INEC Form EC9 (formerly INEC Form CF001) which all candidates are mandated to submit to INEC.
The constitutional requirements for qualification to contest and disqualification from contesting for the position of Governor of a State are contained in Sections 177 and 182(1) of the Constitution. Section 182(1)(j), the provision as to disqualification relevant to this appeal has been reproduced supra. Section 177 is hereunder reproduced:
“A person shall be qualified for election to the office of Governor of a State if-
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of thirty-five years;
(c) he is a member of a political party and is sponsored by that political party; and
(d) he has been educated up to at least School Certificate level or its equivalent." – Per Adamu Jauro, JSC
FALSEHOOD OR FORGERY – WHERE A PETITIONER MAKES AN ALLEGATION OF FALSEHOOD OR FORGERY
Assuming the Appellant argues that the date contained on the 2nd respondent’s WASC Certificate is in itself false information and thus caught by Section 29(5) and (6) of the Electoral Act, his claim would still be incapable of succeeding. This is because to succeed on such an allegation, he must prove that:
1) The existence of a document in writing;
2) That the document or writing was forged;
3) That the forgery was by the person being accused;
4) That the party who made it knew that the document or writing was false; and
5) The party alleged intended the forged document to be acted upon as genuine.
See MAIHAJA V. GAIDAM (2018) 4 NWLR (PT. 1610) 454. In addition, the false information must have been given by the candidate with the aim to circumvent the constitutional requirements for the position being contested. See AGI V. PDP (2017) 17 NWLR (PT. 1595) 386. – Per Adamu Jauro, JSC
GOVERNOR – MINIMUM AGE REQUIREMENT TO CONTEST FOR THE OFFICE OF A GOVERNOR
The minimum age requirement to contest for the office of Governor of a State is 35 years old. – Per Adamu Jauro, JSC
FALSEHOOD – STANDARD OF PROOF WHERE THERE IS AN ALLEGATION OF CRIMINAL PROPORTION
Furthermore, to accuse a candidate of providing false information in his Form EC9, an affidavit sworn to before a public officer, is to accuse him of lying under oath. It is a grave allegation of criminal proportion and it is not to be taken lightly. Being a criminal allegation, the accuser, the Appellant in this case, has a duty to prove the allegation beyond reasonable doubt. See Section 135 of the Evidence Act, 2011 and the cases of AGI V. PDP (supra); OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357; EYA V. OLOPADE (2011) 11 NWLR (PT. 1259) 505; U.B.N LTD. V. ODUSOTE BOOKSTORES LTD. (1995) 9 NWLR (PT. 421) 558; ANYAH V. A.N.N. LTD (1992) 6 NWLR (PT. 247) 319. – Per Adamu Jauro, JSC
COURTS – CONDUCT OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACTS OF THE TWO LOWER COURTS – MEANING OF PERVERSE
It is now well known that this Court is averse to interfering with concurrent findings of facts of the two lower Courts. Such concurrent findings will only be interfered with where they have been shown to be perverse, thereby resulting in a miscarriage of justice. In ATOLAGBE V SHORUN (1985) 1 NWLR (PT. 2) 360 at 375, paras G – H, the learned sage, Oputa, JSC described “perverse” in the following words:
“Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious”. – Per Adamu Jauro, JSC
CAUSE OF ACTION – CAUSE OF ACTION FOR THE PURPOSE OF A PRE-ELECTION MATTER OR AN ACTION BROUGHT UNDER THE PROVISIONS OF S.29 (5) OF THE ELECTORAL ACT, 2022 – WHEN A PRE-ELECTION MATTER MAY BE FILED
…for the purpose of a pre-election suit/matter or action brought pursuant to or under the provisions of Section 29(5) of the Electoral Act, 2022, the submission of any information in an Affidavit or any document by a candidate in relation to his constitutional requirement to contest the election, to Independent National Electoral Commission (INEC), is the cause of action which vests the right of such action to an aspirant who has reasonable grounds to believe that the information or document, is false.
The provisions are in the following terms:-
“(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.”
As can easily be observed from these clear and unambiguous provisions, it is the submission of the information or any document reasonably believed to be false, to INEC by the candidate/political party for the purpose of contesting the election in question that gives the right to an aspirant to file or initiate an action against the candidate. The provisions do not prescribe that such information contained in the Affidavit or any document submitted by the candidate/political party to INEC must be published by INEC before an action can be instituted
in Court to challenge same. For the purpose of the provisions, the cause of action arises and accrues from the date/day the Affidavit containing the information or any document in relation to a candidate’s constitutional requirements to contest the election, was/were submitted by the candidate/political party to INEC for the purpose of contesting the election.
An action pursuant to the provisions of Section 29(5) of the Electoral Act, 2022, being a pre-election matter, is regulated and governed by the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) which stipulates that:-
“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.”
These simple, straightforward forward and precise provisions have been considered and applied by this Court in several decisions, including Abdullahi v. Loko (2022) LPELR-57544 (SC), Princess Agom-Eze v. Umahi & 3 Ors; Appeal No. SC/CV/1317/2022, delivered on 9th December, 2022, Achan v. Azegetor & Anr.; Appeal No. SC/CV/157/2023, delivered on 24th February, 2023, Tofowomo v. Hon. Ajayi; Appeal No. SC/CV/1526/2022, delivered on 27th January, 2023, Egbodo v. APC & Ors; Appeal No. SC/CV/190/2023, delivered on 24th February, 2023. – Per M. L. Garba, JSC
S. 29 OF THE ELECTORAL ACT – THE ESSENCE/MEANING OF S. 29 OF THE ELECTORAL ACT
It must also be realized that the provisions of Section 29(1) – (4) do not deal with or confer the right of legal action on ground of falsity of any information contained in an Affidavit or any document submitted by a candidate, but simply prescribe the time limit within which names of candidates are to be submitted to INEC by political parties and publication of personal particulars of the candidates by INEC. Subsection (4) only vests the right to “Any person” to apply for a copy of the nomination form, affidavit and any other document submitted by a candidate, which shall be issued within 14 days, upon payment of the prescribed fee.
These provisions {Section 29 (1) – (4)} only impose duties or obligations on political parties and INEC in the process of nomination of candidates for election. Subsection (4) in particular, deals with ‘Any person’s” right to a copy of the documents submitted by a candidate at an election.
Under the provision ‘Any person’ means what it says; "Any Nigerian Dick & Harry” politician or not, is vested with the right to a copy of the documents submitted by a candidate to INEC upon payment of the prescribed fee.
Section 29 (5) on its part, provides for “Any aspirant who participated in the primaries of his political party …”
Clearly, an aspirant, as provided in the provision, is an insider and member of the political party concerned who took active physical part in the party primaries from the beginning to the end and so is not just "Any person" prescribed in subsection (4) who would have to wait to obtain a copy of the documents submitted by a candidate or for publication of particulars of a candidate by INEC before filing an action. An aspirant would know when the candidate of his political party was nominated at the party primaries and the nomination by the party was submitted to INEC.
In that regard, these provisions of Section 29 (1) – (4) deal with a different subject matter from the provision of Section 29 (5) with both clearly, distinctively and expressly couched to call for any interpretation, together.
Perhaps, I should point out that the provisions of Section 32(1) of the Electoral Act, 2022 which requires INEC to publish a statement of the full names and addresses of all candidates standing nominated by political parties 150 days before an election is completely irrelevant and inapplicable for the purpose of the, cause of action under Section 29(5) of the Act.
The cause of action in respect of the provision of Section 32(1) is provided for and vested in Section 32(2) which provides thus:- “(2) Any registered political party that observes that the name of its candidate is missing on the list published in accordance with subsection (1) shall notify the Commission in writing, signed by its National Chairman and Secretary, supported with an affidavit not later than 90 days to the election.”
As can easily be observed, the cause of action arises and accrues to a political party that observes that its nominated candidate is missing from the publication of the names and addresses of candidates for an election, by INEC as provided for in Section 32(1), from the date of the publication by INEC. For that reason, for the purpose of the provisions of Section 285 (9) of the Constitution, the date of occurrence of the event, decision or action, in a suit by a political party pursuant to the provision of Section 32 (2), would be the date of the publication of the names and addresses of the candidates for the election, by INEC.
Clearly therefore, the provisions are neither relevant nor applicable to the facts of the present appeal.
Similarly, the provisions of Section 29(5) of the Electoral Act, 2022 should not be confused with the provisions of 31 (1) – (5) of the repealed 2010 Electoral Act which provided, in summary, that any person may apply to INEC for a copy of the nomination form, affidavit or any other document submitted by a candidate at an election after the publication of the personal particulars of the candidate, by INEC and to institute an action if he believed that any such information in the Affidavit or any document submitted by the candidate, is false. Under the provisions of Section 31(1) – (5) of the 2010 Act, the publication of personal particulars of candidates by INEC constituted the occurrence of the event, decision or action and so the cause of action.
The date of the publication was to be the commencement date for the purpose the limitation period prescribed for the filing of an action pursuant to the provisions of the elsewhilst Section 31(5) of the 2010 Electoral Act. See Modibbo v. Usman (2020) 3 NWLR (pt. 1712) 470 at 530 – 531, Abubakar v. INEC (2020) 12 NWLR (pt. 1737) 37 at 163, Adamu v. Dantiye (2022) 1 NWLR (pt. 1810) 1 at 24, Ibezim v. Ebeleke (2022) 4 NWLR (pt. 1819) 1 at 39. – Per M. L. Garba, JSC
APEAL – DUTY OF AN APPELLANT CONTESTING CONCURRENT FINDINGS OF FACTS
Since the fulcrum of the appeal before this Court is the Appellant’s dissatisfaction with the concurrent findings of facts, the Appellant bears the duty in his grounds of appeal to, directly, question and challenge the findings on the basis of want or lack of evidence to support or ground such findings. In other words, the Appellant must, in his grounds of appeal attack and challenge the findings for not being supported by credible evidence on the record and so, perverse. The Appellant has not done so and has failed in this appeal to reasonably show why the Court should interfere with the concurrent findings by the two (2) lower Courts. See Sa’eed v. Yakowa (2013) All FWLR (pt. 692) 1650, Kubor v. Dickson (2013) All FWLR (pt. 676) 392, Andrew v. INEC (2018) 9 NWLR (pt. 1625) 507, Ojobo v. Moro (2019) 17 NWLR (pt. 1700) 166. – Per M. L. Garba, JSC
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Evidence Act, 2022