Legalpedia Citation: (2023-03) Legalpedia 65056 (CA)

In the Court of Appeal

Holden at Kaduna

Fri Mar 17, 2023

Suit Number: CA/K/33/2023

CORAM

AMINA AUDI WAMBAI

MOHAMMED BABA IDRIS

MUSLIM SULE HASSAN

PARTIES

SANUSI NALADO

APPELLANTS

1. UMAR ALI BINDAWA
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL  COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The case of the Appellant against the 1st, 2nd and 3rd Respondents at the trial Court was that he and the 1st Defendant are registered and card carrying members of the 2nd Respondent. Both of them alongside 2 others party-men contested the primary election for the nomination and or selection of a candidate who will contest for the office of a member representing Bindawa Constituency in the Katsina State House of Assembly in the 2023 general elections. The primary election took place on 26th May, 2022 and by the result thereof the 1st Respondent scored or purportedly scored 25 votes while the Appellant closely followed with 24 votes. The 2nd Respondent submitted the name of the 1st Respondent to the 3rd Respondent as its candidate in the general election comes, 2023.

Dissatisfied with the outcome of the election, the Appellant wrote a petition to the Appeal Committee and complained that 3 delegates who participated in the election and also voted for the 1st Respondent were at the time of the primary election civil servants and therefore their votes ought not to have been counted. The Appeal Committee conducted its investigation and at the end of the exercise found or purportedly found that the 3 delegates complained of by the Appellant were civil servants and also voted for the 1st Respondent.

The Appeal Committee then recommended to the National Working Committee of the 2nd Respondent that the 3 votes of these delegates be subtracted from the scores of the 1st Respondent so that will be left with 22 votes while the Appellant will have his initial 24 votes intact. The Appeal Committee also recommended that the name of the Appellant shall be submitted to the 3rd Respondent as the candidate of the 2nd Respondent for Bindawa State Constituency in the general election as he won the election with 24 votes as against the 1st Respondent who scored 22 valid votes.

The National Working Committee of the 1st Respondent sat on the 6th of July 2022 and considered the recommendations of the Appeal Committee but did not accept it.

However, despite this fact, the Appellant acting on the recommendation of the Appeal Committee completed INEC Form EC9 and submitted his particulars in anticipation that the 3rd Respondent will publish his name as the candidate of the 2nd Respondent.

When the 3rd Respondent published the names of the candidates for Katsina State Constituencies, the Appellant found or discovered to his greatest disappointment that his name was missing on the list as the 3rd Respondent published the name of the 1st Respondent instead of his own and hence filed an action on 5th of August 2022 at the Federal High Court, Katsina State.

The Trial Court dismissed the case of the Appellant principally on the ground that the Appellant’s case is statute barred.

Aggrieved he made the instant appeal.

HELD

Appeal Dismissed

ISSUES

Preliminary Objection

Whether the Lower Court was right in holding that the suit of the Appellant was statute barred having regard to Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 As Amended.

Whether from the processes filed and exchanged by the parties herein in the substantive suit, the Lower Court was right in dismissing the Appellant suit for lacking in merit.

RATIONES DECIDENDI

PRE-ELECTION MATTERS – MUST BE FILED WITHIN 14 DAYS – COMPUTATION OF TIME

The Law/Statute which mandated that all pre-election appeals must be filed within Fourteen days is Section 285 (11) of the 1999 Constitution (as amended) and for purpose of clarity, Section 285 (11) of the Constitution provides that:

“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.’’

The provision of the law above is clear as day. And we must bear in mind that the day of the delivery of the Judgment is inclusive in the computation of time. This had been settled by the Supreme Court in the authority of HON. HENRY DANIEL OFONGO V. ALL PROGRESSIVE CONGRESS & 3 ORS (2022) 4 NWLR (PT. 1821) 543 at 579 that in computing the 14 days, the date of the delivery of the judgment appealed against is inclusive. – Per M. S. Hassan, JCA

 

INTERPRETATION ACT – COMPUTATION OF TIME – NOT APPLICABLE TO ELECTION MATTERS

It is instructive to note that the provision of Interpretation Act on computation of time is not applicable to election and election related matters as erroneously argued by the Appellant See the Apex Court case of SENATOR (Dr.) CHRIS NWABUEZE NGIGE & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2015) 1 NWLR (Pt. 1440) 281 at 318-319 – Per M. S. Hassan, JCA

NOTICE OF APPEAL – WHEN FILED OUT OF TIME

From the foregoing it is obvious that this appeal is statute-barred as the Notice of Appeal was filed out of time, one of the cardinal principle of Statutes of limitation is that a person who sleeps over his rights should not be assisted by the Court in any action for recovery of his property. It is a common saying that equity aids the vigilant and not the indolent. Delay also defects equity. – Per M. S. Hassan, JCA 

PRE-ELECTION MATTERS – COMPUTATION OF TIME – DAY OF THE EVENT, ACTION, OR DECISION IS INCLUDED.

The Law which mandate that all pre-election matters must commence within Fourteen days is Section 285 (9) of the 1999 Constitution (as amended) and for the purpose of clarity, Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:

‘’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.’’

This Constitutional provision is very clear, we must bear in mind that the day of the occurrence of the event, decision or action is included. This had been settled in the authority of the Supreme Court case of BELLO V. YUSUF & Ors (2019) LPELR 47918 (SC) that in computing the 14 days, the day of the event, action or decision is included. – Per M. S. Hassan, JCA

 

NWC – THEIR DECISION IS FINAL

Article 20 (e) of the 2nd Respondent guidelines on House of Assembly Primary election provides that: ‘’The NWC (acting on behalf of NEC) whose decision is final shall be the arbiter for all further appeals from State Houses of Assembly, House of Representatives, Senate, Governorship and Presidential Primaries’’. See page 32 of the record.

By the above provisions it is not in dispute that the decision of the National Working Committee being the highest decision making body, is final and binding on all its members on any matter regarding the primary election that being the case the recommendations of the Appeal Committee that found that the Appellant won the election with majority valid votes are not binding on the National Working Committee of the 2nd Respondent, they being the final arbiter by law on all issues pertaining to the 2nd Respondent’s primary elections. – Per M. S. Hassan, JCA

 

FAIR HEARING – IT IS NEEDLESS FOR THE NWC TO HEAR FROM THE APPELLANT AGAIN BECAUSE THE APPEAL COMMITTEE HEARD THE APPELLANT

It is trite that the effect of breach of the rule of audi alteram partem or of fair hearing is to render the hearing liable to be set aside or declared invalid by the Court. In the instant case I quite agree with the decision of the learned trial Judge at page 286 of the record that since the Appeal Committee has heard from the Plaintiff now Appellant and the National Working Committee did not hear from the 1st Respondent, it is needless for the National Working Committee to hear from the Appellant again because the Appeals Committee hear the Appellant on behalf of the National Working Committee. – Per M. S. Hassan, JCA

 

PROCEDURE- POLITICAL PARTIES TO SUBMIT TO INEC LIST OF CANDIDATES NOT LATER THAN 180 DAYS BEFORE THE DATE FOR GENERAL ELECTION – INCE GUIDELINESS CANNOT OVERRIDE THE PROVISIONS IN ELECTORAL ACT

The answer to this issue can very easily be found in the provision of Section 29 (1) of the Electoral Act, 2022 which mandates all political parties to submit to INEC the list of its candidates not later than 180 days before the date appointed for the general election. The Electoral Act made adequate provisions on the final date for submission of the party’s candidate. The failure as rightly submitted by learned Counsel for the 1st and 2nd Respondents to strictly adhere to the period within which to resolve all the internal disputes as provided by the INEC GUIDELINES or Timetable, does not come with any consequences in form of outright invalidation of the sitting and the decision taken by the National Working Committee on the said date more so the 2nd Respondent complied with the provisions in Section 29 (1) of the Electoral Act, its failure to comply with the provision in INEC Time Table or Guidelines is inconsequential the trite position of the law is that INEC Guidelines cannot override the provisions in Electoral Act. See Supreme Court case of JEGEDE v. INEC (2021) LPELR-55481 (SC) Per AGIM, JSC (Pages 25-26, Paras A-D) – Per M. S. Hassan, JCA

 

CASES CITED

STATUTES REFERRED TO

Electoral Act 2022

Constitution of the Federal Republic of Nigeria 1999 (As Amended)

Interpretation Act

APC Guidelines for the nomination of candidates for the 2023 General Elections

 

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