JOSEPH NWOBASI V ANAYO EDWIN & ORS

Legalpedia Citation: (2023-02) Legalpedia 30331 (SC)

In the Supreme Court of Nigeria

Holden At ABUJA

Fri Feb 10, 2023

Suit Number: SC.CV/1651/2022

CORAM

John Inyang Okoro Justice of the Supreme Court of Nigeria

Amina Adamu Augie Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

PARTIES

JOSEPH NWOBASI

APPELLANTS

ANAYO EDWIN
ALL PROGRESSIVES GRAND ALLIANCE
DR. VICTOR IKE OYE
INDEPENDENT NATIONAL ELECTORAL COMMISSION

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, LIMITATION LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant was an aspirant in the primary election conducted by the 2nd Respondent and monitored by the 4th Respondent on the 27th day of May, 2022 to select its candidate for the Ezza North/Ishielu Federal Constituency of Ebonyi State in the House of Representatives. The Appellant emerged victorious and was issued with a certificate of return dated 6th June, 2022 by the 2nd Respondent. His named was further forwarded to the 4th Respondent as the 2nd Respondent’s candidate for the Ezza North/Ishielu federal constituency of Ebonyi State for the House of Representatives elections during the 2023 general elections. While the Appellant was waiting for the final publication of list of candidates to contest in the 2023 general elections by the 4th Respondent, rumour erupted that the 1st, 2nd and 3rd Respondents were making plans to substitute the name of the Appellant as the 2nd Respondent’s candidate with the name of the 1st Respondent who was not a registered member of the 2nd Respondent at the time talkless of participating in the primary election won by the Appellant.

To allay his fears of the rumour, the Appellant briefed his solicitor who in a letter dated 26/7/2022 requested from the 4th Respondent the certified true copies of all the documents submitted by the 2nd Respondent in respect of its candidate for the Ezza North/Ishielu Federal Constituency. On 1st August, 2022 the 4th Respondent in response to that letter furnished the Appellant’s solicitor with certified true copies of every document in its custody regarding Ezza North/Ishielu Federal Constituency. Upon the receipt of those documents, the Appellant discovered that his name was actually substituted although yet to be published by the 4th Respondent. The Appellant also discovered that the 1st, 2nd and 3rd Respondents had dishonestly authored a letter of withdrawal of candidacy in the name of the Appellant and appended a signature unknown to the Appellant.

To forestall the perceived plot by the 1st, 2nd and 3rd Respondents to substitute him with the 1st Respondent as the 2nd Respondent’s candidate, the Appellant on 9th August, 2022 took out an originating summons at the Court of first instance.

In reaction to the originating summons filed by the Appellant, the 1st Respondent, as 3rd defendant on 23/8/2022 filed what he titled “Composite Counter Affidavit/Counter-Claim of the 3rd defendant; wherein he denied knowledge of the alleged plan to substitute the name of the Appellant with his name and also aligned with the reliefs sought by the Appellant in his said counter – claim.

In a sudden twist of events, the 1st Respondent herein, as 3rd defendant on 19th September, 2022 filed a preliminary objection challenging the jurisdiction of the Court to entertain the originating summons on the ground that it was instituted outside 14 days of accrual of the cause of action, thus statute barred.

The trial Court discountenanced the 1st Respondent’s preliminary objection and granted all the reliefs sought by the Appellant. Dissatisfied, the 1st Respondent lodged an appeal at the Court of appeal which set aside the judgment of the trial Court and held that the suit was statute barred. The Appellant, obviously aggrieved, has now approached this Court to challenge the judgment of the Court of Appeal.

HELD

Appeal allowed

ISSUES

Whether in the light and circumstances of the facts of this case, the lower Court was right when it held that the Appellant’s suit filed on 9/8/2022 was filed out of the time prescribed by Section 285(9) of the Constitution of Nigeria and therefore was statute barred?
Whether the Appellant who had successfully won the primary election of the 2nd Respondent and his name duly submitted by the 2nd Respondent to the 4th Respondent as the candidate of the 2nd Respondent in the general election can still be referred to as an aspirant under Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and thus, subjected to the limitation as stipulated in Subsection 9 thereof?
Whether the lower Court was right when it assumed the jurisdiction to determine the 1st Respondent’s appeal before it in a complaint solely against the reliefs the same 1st Respondent had conceded to in the same matter?
Whether the lower Court was right when it held that the right of the 1st Respondent to have his counsel in Court during hearing was breached by the trial Court in view of the facts and circumstances available to the trial Court?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – DUTY OF A RESPONDENT INTENDING TO RELY ON A PRELIMINARY OBJECTION

The position of the law is well settled regarding a respondent who intends to rely on a preliminary objection at the hearing of an appeal. Order 2 Rule 9(1) of the Supreme Court Rules, 2008 (as amended) provides that:-

“a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time.”

The above position has been loudly echoed by this Court in a plethora of decided cases to emphasize the point that non-compliance with the rule may attract a striking out order. See Chief Sunday Oriorio & Ors v Chief Joseph Osain & Ors (2012) 16 NWLR (pt. 1327) 560 at 578. Even where the Respondent elects to incorporate the preliminary objection in his brief, the initiating process of the objection must be the notice which the Appellant would react to if he deems necessary. The party arguing the objection in his brief would then seek the leave of Court to move the notice of objection before hearing commences otherwise the objection would be deemed to have been abandoned. See Dr. Olusegun Agagu v Rahman Olusegun Mimiko & Ors (2007) 7 NWLR (pt. 1140) 341 at 385; Nsirim v Nsirim (1990) 3 NWLR (pt. 138) 285; Lagga v Sarhuna (2008) 16 NWLR (pt. 114) 427. – Per J. I. Okoro, JSC

PRE-ELECTION MATTER – TIME FRAME FOR FILING PRE-ELECTION MATTERS

Section 285(9) of the 1999 Constitution stipulates that 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. This section of the Constitution operates as a limitation against pre-election matters instituted after 14 days of the accrual of cause action. It operates to extinguish rights of action and jurisdiction of Courts from entering pre-election matters commenced outside 14 days of accrual of cause of action. See Mohammed Sani Musa v David Umar & Ors (2020) 11 NWLR (pt. 1735); All Progressives Congress v Lere (2020) 1 NWLR (pt. 1705) 8254. – Per J. I. Okoro, JSC

CAUSE OF ACTION – MEANING OF CAUSE OF ACTION – CONDUCT OF COURT IN DETERMINING WHEN A CAUSE OF ACTION AROSE IN A SUIT

It is trite that a cause of action is the factual situation which a claimant relies upon to support his claim, recognized by the law as giving rise to a right capable of being enforced against the defendant. It is the entire set of circumstances giving rise to an enforceable claim. See Adesokan v Adegorolu (1997) 3 NWLR (pt. 473) 261.

In order to determine when a cause of action arose in a suit, the Court is required to examine the averments in the pleadings. See Ogar & Ors v Igbe & Ors (2019) LPELR – 48998 (SC), Oseni v Dawodu (1994) 4 SCNJ 197; (1994) 4 NWLR (pt. 339) 390. – Per J. I. Okoro, JSC

ELECTION MATTERS – THE NATURE OF ELECTION MATTERS – THE IMPORTANCE OF TIME IN ELECTION MATTERS

The law is trite that election matters are sui generis with a special character of their own, quite different from the ordinary civil or criminal proceedings. The major difference being time of doing an act because time is of the essence in election matters. See Okechukwu v INEC (2014) 17 NWLR (pt. 1436) 255; Nyesom v Peterside (2016) 7 NWLR (pt. 1512) page 452; Hassan v Aliyu (2010) 7 NWLR (pt. 1223) 547. – Per J. I. Okoro, JSC