Legalpedia Citation: (2023-02) Legalpedia 45347 (SC)

In the Supreme Court of Nigeria

Holden at Abuja

Fri Feb 24, 2023

Suit Number: SC.CV/190/2023

CORAM

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JUSTICE SUPREME COURT

UWANI MUSA ABBA AJI JUSTICE SUPREME COURT

MOHAMMED LAWAL GARBA JUSTICE SUPREME COURT

IBRAHIM MOHAMMED MUSA SAULAWA JUSTICE SUPREME COURT

EMMANUEL AKOMAYE AGIM JUSTICE SUPREME COURT

PARTIES

PETER OBOH EGBODO

APPELLANTS

1. ALL PROGRESSIVES CONGRESS
2. DAVID AGADA OGEWU
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The appellant claims he is a card carrying member of the 1st respondent, All Progressives Congress (APC). He was interested in contesting the House of Representatives seat for Obi/Oju Federal Constituency of Benue State in the up coming general elections. He purchased the Expression of Interest and Nomination Forms and fulfilled all other necessary requirements. He was duly screened and cleared to participate in the primary elections slated for 28th May 2022. He claims the election duly took place in all the 23 wards of Obi/Oju Federal Constituency and was duly monitored by the 3rd respondent. That the results were announced on the following day, 29th May 2022, and he was declared the winner, having scored 11,781 votes while the 2nd respondent scored 652 votes. That the said results were handed over to the Electoral Committee sent by the 1st respondent’s National Headquarters.

However, while waiting to be issued with the appropriate INEC form, he got wind that there was a plot to remove his name as the winner and substitute it with the 2nd respondent’s name. He made a written protest to the 1st respondent’s Appeal Committee. The letter was dated 31st May, 2022 and received by the 1st respondent on 3rd June 2022. He received no response. On 17th June 2022, the 2nd respondent’s name was submitted to INEC, which published it on 24th June 2022. This propelled the appellant to file an Originating Summons on 30th June 2022 to which the 1^st and 2^nd Respondents raised preliminary objections.

​The grounds for the preliminary objections were that the appellant lacked the locus standi to institute the action because he had been disqualified from the primary election by the 1st respondent’s screening committee and thus did not qualify as an aspirant. Also, they claimed that the cause of action arose on 29th May 2022 when the election results were announced and that the filing of the suit on 30th June 2022 was well outside the 14 days prescribed in Section 285(9) of the 1999 Constitution, as altered, within which to file a pre-election matter.

The learned trial Judge entered judgment in the appellant’s favour and granted all his reliefs.

​The 1st respondent was dissatisfied with the decision and appealed to the Court of Appeal. They Court allowed the appeal in part and upheld the preliminary objection. The appellant, aggrieved by part of this decision appealed against the decision relating to the action of the appellant being statute barred as the cause of action arose on 31st May 2022, when the appellant wrote his petition to the 1st respondent&Appeal Committee. On the issue of the appellant's alleged disqualification, the Court agreed with the trial Court that there was no evidence that the appellant was disqualified as there was no evidence that the 1st respondent complied with Article 13(f) of its own Guidelines by issuing a certificate of disqualification to him. It declined to consider the third issue before it as to  whether the appellant proved his claim before the trial Court, having regard to its earlier finding that the suit was statute barred. Aggrieved by part of this decision, the Appellant filed the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø Whether the lower Court was right when their Lordships held that Suit No. FHC/MKD/CS/75/2022 between Peter Oboh Egbodo V. David Agada Ogewu & 2 Ors was statute barred?

Ø Whether the lower Court was right when their Lordships without considering issue three submitted for determination resolved same against the appellant in favour of the 1st respondent?

RATIONES DECIDENDI

GROUNDS OF APPEAL – GROUNDS OF APPEAL MUST BE PREDICATED ON THE VALIDITY OF THE RATIO OF THE DECISION COMPLAINED OF

The appellant having specified the part of the judgment he is dissatisfied with must limit his grounds of appeal to that portion complained of. The law is settled that a ground of appeal must be predicated on the validity of the ratio of the decision complained of. See: Egbe Vs Alhaji & Ors. (1990) 3 SC (Pt, III) 63 @ 109; Dalek Nig, Ltd, Vs Ompadec (2007) ALL FWLR (364) 204; Mato Vs Hember (2017) LPELR – 42765 (SC) @ 14 -15 F-C, As the appeal is only challenging the decision of the lower Court on the issue of statute bar, a ground of appeal challenging any other aspect of the decision is incompetent and liable to be struck out. – Per K. M. O. Kekere-Ekun, JSC

LIMITATION PERIOD – LIMITATION PERIOD CANNOT BE EXTENDED UNLESS THE LEGISLATION PROVIDES FOR EXTENSION

The provision of a time limit within which an action may be instituted gives Section 285(9) of the Constitution the character of a limitation law. The effect of a limitation law is that a litigant who would otherwise have had a competent cause of action, loses the right to enforce it if he fails to file his action within the stipulated time. He is left with an empty shell. His action would be statute barred and cannot be maintained. The Court would therefore lack jurisdiction to entertain it. See: INEC Vs Ogbadibo LG & Ors, (2016) 3 NWLR (Pt, 1498) 167 @ 204 — 205 H — A & 195 D – F; Aremo II Vs Adekanye (2004) 13 NWLR (Pt, 891) 572; Odubeko Vs Fowler (1993) 7 NWLR (Pt, 308) 637; A.G. Adamawa State & Ors. Vs A.G, Federation (2014) LPELR- .2322 (SC) & 37 F; (2014)4 – 6 SC 127.

​The limitation period prescribed by a particular statute (or the Constitution) cannot be extended unless the legislation specifically provides for an extension. Election and election-related matters are sui generis. They are in a class of their own. Time frames are to be strictly adhered to, more so where the Constitution, which is the grundnorm, fixes the time for taking any action. The time is said to be fixed liked the Rock of Gibraltar.

See: Marwa Vs Nyako (2012) LPELR – 7837(SC) @ 36D; Eze Vs Umahi (2022) LPELR – 59157(SC) @ 16 E – F; Iwok Vs Nyang & Ors, (2022) LPELR – 5782 (SC) @ 30 B – D. – Per K. M. O. Kekere-Ekun, JSC

STATUTE BAR – FACTORS THE COURT SHALL REGARD IN DETERMINE WHETHER AN ACTION IS STATUTE BARRED – WHEN TIME BEGINS TO RUN FOR THE PURPOSE OF LIMITATION LAW

The settled position of the law is that it is the originating processes filed by the plaintiff that are to be construed to determine whether an action is statute-barred. The Court shall have regard to the following factors:

1. a) the date when the cause of action accrued;

1. b) the date of commencement of the suit; and

1. c) the period of time prescribed for filing the suit.

See: Abdullahi Vs Loko (2022) LPELR – 57578 (SC) @ 46 E – F, per Abba Aji, JSC; Eze Vs Umahi (supra). It is to be noted that the Court, in applicable instances, may have recourse to the pleadings of the defendants where an objection to the Court& jurisdiction is determined at the conclusion of the case along with the substantive matter. For the purpose of a limitation law such as Section 285(9) of the 1999 Constitution, as altered, time begins to run (or the cause of action accrues) from the time when there is in existence a person who can sue and a person who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to approach the Court for redress. See: Hassan Vs Aliyu (2010) 10 NWLR (Pt, 1223) 547; INEC Vs Enasito & Ors. (2017) LPELR – 24839 (SC) @ 50 – 51 C – A; Oko & Ors. Vs A.G. Ebonyi State (2021) LPELR – 54988 (SC) @ 57 – 58 G – B. It is appropriate to note at this stage that the earlier position of this Court with regard to when the cause of action accrued in a pre-election matter, was that the cause of action accrued from the date the plaintiff became aware of the infraction complained of. See: Musa Vs Umar & Ors. (2020) 11 NWLR (Pt. 1735) 213; Saki Vs APC (2020) 1 NWLR (Pt. 1706) 515; APC Vs Lere (2020) 1 NWLR (Pt. 1705) 254, all delivered in 2019 though reported in 2020. However, in more recent decisions in Karshi Vs Gwagwa (2022) LPELR – 5744 (SC) @ 30 – 33 D — A; and Abdullahi Vs Loko (2022) LPELR – 57578 (SC), this Court took a closer look at the provisions of Section 285(9) of the Constitution and following our decision in Bello Vs Yusuf (2019) LPELR – 47918 (SC) @ 11 — 21 E — B & 29 – 30 A – C, held that the date to be reckoned with is the date of the occurrence of the event, decision or action complained of and not the date the aggrieved person became aware of the event, decision or action complained of.The rationale for this position is that knowledge on the part of the person complaining is subjective and subjects parties to the convenience of the plaintiff, as he could choose any date, even a year after the event, decision or action complained of, as the date he became aware of the infraction. See: per Peter-Odili, JSC in Bello Vs Yusuf (supra) @ 29 – 30 A – C; Sosan & Ors. Vs Ademuyiwa & Ors. (1986) 3 NWLR (Pt, 27) 241; Ajibona Vs Kolawole (1996) 10 NWLR (Pt. 476) 22 @ 36 E – F and 37 A – B. – Per K. M. O. Kekere-Ekun, JSC

REVERSAL – MEANING OF REVERSAL

As rightly submitted by learned counsel for the 2nd respondent "reversal" means "a change of something so that it is the opposite of what it was." See: Oxford Advanced Learner&s Dictionary, International Student& Edition, New 8th Edition. – Per K. M. O. Kekere-Ekun, JSC

PRE-ELECTION MATTER – THE TIME FRAME FOR FILING PRE-ELECTION MATTERS – CONDUCT OF COMPLAINANTS WHERE THE POLITICAL PARTY HAS INTERNAL MECHANISM FOR SETTLING PRE-ELECTION MAYTTERS

By the combined effect of Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria providing 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" and Section 84(14) of the Electoral Act, 2022 providing that ’Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress”; an aspirant complaining of any issue concerning a “pre-election matter” or “that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election”, should approach the Federal High Court for redress. Although the Political Party may have its internal mechanism of settling pre-election matters and other issues, it must be noted that the constitutional provision or the provision of the Act stands higher than the Party’s internal mechanism of settling disputes arising from primary elections. Similarly, the constitutional prescription of 14 days cannot wait for the aspirant to first explore the Political Party’s internal mechanism before approaching the Court for redress. It follows therefore that whenever there is a perception or apprehension of the “occurrence of the event, decision or action” arising from any primary election, the law expects or enjoins him to quickly go to the Federal High Court for redress since he has only 14 days to do that considering the sui generis nature of election matters. The “occurrence of the event, decision or action” must not necessarily mean that the Party must have taken a decision or action against the aggrieved aspirant but also that an event has occurred from the conducted or concluded primary election that the aspirant is not happy about or aggrieved about. This to my mind is what the Act envisages. It does not in any way mean that the aspirant must exhaust and explore all settlement with his political Party before he approaches the Court. – Per U. M. Abba-Aji, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
2. Electoral Act, 2022
3. Constitution of the All Progressives Congress (APC) 
4. The Guidelines for the Nomination of Candidates for the 2023 General Elections of the All Progressives Congress (APC)

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