Legalpedia Citation: (2023-04) Legalpedia 09647 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Fri Apr 14, 2023

Suit Number: CA/ABJ/CV/302/2023

CORAM

PETER OLABISI IGE JCA

UGOCHUKWU ANTHONY OGAKWU JCA

DANLAMI ZAMA SENCHI JCA

PARTIES

1. SOCIAL DEMOCRATIC PARTY
2. ONARIGU ONAH KANA
3. ADAMU ELAYIGU KAIKA

APPELLANTS

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st Appellant (Claimants at trial) is one of the registered political parties in Nigeria. It sponsored the 2nd Appellant as its candidate for the UDEGE/LOKO State Constituency of Nasarawa State at the recently held Governorship and State Houses of Assembly Election. Prior to the conduct of the said elections, the 2nd Appellant withdrew his candidacy. The 1st Appellant duly notified the Respondent of this development and thereafter held a fresh primary election as required by the Electoral Act, 2022. The 3rd Appellant emerged as the candidate to replace the 2nd Appellant as the 1st Appellant’s candidate for the said UDEGE/LOKO State Constituency.

​The name of the 3rd Appellant was communicated to the Respondent, but the Appellants were unable to upload the 3rd Appellant’s name to the Respondent’s portal as the Respondent did not open its said portal.

The Appellants took the issue to court. The Respondent having joined issues also filed a Notice of Preliminary Objection where it, inter alia, contended that the Appellants’ action was statute-barred. The lower Court in its judgment upheld the preliminary objection and dismissed the Appellants’ action for being statute-barred.

The Appellants were dissatisfied with the decision of the lower Court and they appealed against the same.

HELD

Appeal dismissed

ISSUES

Ø Whether the trial Court Judge was right in holding that the suit was statute-barred in the circumstances of this matter?

RATIONES DECIDENDI

REPLY BRIEF – WHEN A REPLY BRIEF IS A RE-ARGUMENT OF THE SUBMISSIONS ALREADY MADE

 

The Appellants also filed a Reply Brief on 13th March 2023. However, the said Reply Brief is a re-argument of the submissions already made in the Appellants’ Brief. As this is not the purpose of a Reply Brief as stipulated in Order 19 Rule 5 of the Court of Appeal Rules, 2021; the said Reply Brief is incompetent and it is hereby struck out: OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580, REGD TRUSTEES OF IKOYI CLUB 1938 vs. AYODEJI (2020) LPELR (51633) 1 at 5-7, PROJECT VISION ACTUALIZERS LTD vs. ILUSHIN ESTATES LTD (2021) LPELR (55629) 1 at 27-28 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 6-8. – Per U. A. Ogakwu, JCA

 

PRE-ELECTION MATTER – LIMITATION PERIOD FOR PRE-ELECTION MATTERS

It is not disputed that this matter is a pre-election matter within the meaning of Section 285 (14) of the 1999 Constitution, as amended. Section 285 (9) of the 1999 Constitution, 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.”

​The facts necessary to resolve the issue of whether the action is statute-barred are not convoluted. In ascertaining whether an action is statute-barred, the Court looks at the date when the action was instituted and the date when the cause of action arose. Now, a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action. In simple terms, a cause of action arises the moment a wrong is done to the plaintiff by the defendant. See EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20 and ADEKOYA vs. FHA (2008) 11 NWLR (PT 1099) 539 at 551 and 557.

The determination of whether an action is caught by the statute of limitation is a matter of calculation of raw figures and a Court of law has no discretion in the matter: ADEKOYA vs. FHA (supra) at 557. – Per U. A. Ogakwu, JCA

CAUSE OF ACTION – CAUSE OF ACTION DISTINGUISHED FROM RIGHT OF ACTION

It is however necessary to distinguish a cause of action from a right of action. A right of action is the right to enforce presently a cause of action. A right of action is a remedial right. A statute of limitation however removes the right of action and leaves the plaintiff with a bare and empty cause of action which he cannot enforce. See EGBE vs. ADEFARASIN (supra) at 20, EBOIGBE vs. NNPC (1994) 5 NWLR (PT 347) 649 at 659, ODUBEKO vs. FOWLER (1993) 7 NWLR (PT 308) 637, AREMO II vs. ADEKANYE (2004) 13 NWLR (PART 891) 572 at 592-593 and P. N. UDDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 or (2004) 24 WRN 1. – Per U. A. Ogakwu, JCA

CAUSE OF ACTION – DETERMNING WHEN A CAUSE OF ACTION AROSE

But when did the cause of action arise? This is key to ascertaining if the action was filed within the limitation period. 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 usually has 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) 1 at 46 and EZE vs. UMAHI (2022) LPELR (59157) 1 at 35-36. It must be noted that the Court, in applicable instances, may have recourse to the processes of the defendant where an objection to the Court’s jurisdiction is determined at the conclusion of the case along with the substantive matter. See KARSHI vs. GWAGWA (2022) LPELR (57544) 1 at 13-19 and EGBODO vs. APC (2023) LPELR (59973) 1 at 22. In the circumstances of this matter in ascertaining when the cause of action accrued/occurred, recourse will have to be made to the processes filed by both the Appellants and the Respondent. – Per U. A. Ogakwu, JCA

 

PRE-ELECTION MATTER – WHEN CAUSE OF ACTION ACCRUES IN PRE-ELECTION MATTERS

Unfortunately, awareness by the aggrieved person as being when the cause of action occurred/accrued, is not the legal position. In EGBODO vs. APC (supra) at 23-24, Kekere-Ekun, JSC asseverated:

“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.”

See also EZE vs. UMAHI (supra) at 22-27. – Per U. A. Ogakwu, JCA

 

JUDGMENT – CONDUCT OF APPELLATE COURTS WHEN GIVING JUDGMENTS AND CONDUCT OF PARTIES WHEN CITING CASES

The Appellants supplied the opinion of Ogunwumiju, JSC in the unreported case of APPEAL NO: SC/CV/1526/2022 delivered on 27th January 2023. The said opinion shows that the appeal was heard by a panel of five Justices of the Supreme Court, videlicet – Garba, Ogunwumiju, Saulawa, Jauro and Agim, JJSC. Section 294 (2) and (3) of the 1999 Constitution, as amended, provides as follows:

“294 (2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”

So, by the constitutional provisions each of the five Justices is to express an opinion in writing for there to be a judgment of the Court and it is the opinion of the majority that would be the decision of the Court. Let me restate that the Appellants only furnished the opinion of Ogunwumiju, JSC; this being so, it is not the complete judgment of the Supreme Court in the said matter and it cannot be ascertained whether the said opinion is the opinion of the majority of the Justices in order to be taken as the decision of the Supreme Court in the matter.

The conduct of the Appellants in furnishing only the opinion of Ogunwumiju, JSC is suspect. I restrain myself from making any scathing remarks about this conduct as it is a conduct that smacks of underhand tactics which may open this Court to ridicule, if the said opinion of Ogunwumiju, JSC is relied upon and it turns out that it is not the majority opinion or the decision of the Supreme Court on the matter. Legal practitioners are Ministers in the temple of justice. They are not to engage in sharp practices and unprofessional conduct. A legal practitioner is not to sacrifice professional ethics for a client’s case. Clients come and go, but the profession remains. The most important duty the legal practitioner owes the profession is to ensure that justice is done. The case is not to be won at all costs, even going to the extent of misleading the Court in order to win. That is unethical. Verbum sap! See generally ANUKA COMMUNITY BANK NIG LTD vs. OLUA (2000) LPELR (10674) 1 at 22, OLUWALOGBON MOTORS LTD vs. NDIC (2018) LPELR (46482) 1 at 25-26, APC vs. ENSIEC (2021) LPELR (55337) 1 at 58-59 and MAKINDE vs. MENE (2018) LPELR (50671) 1 at 20-23. – Per U. A. Ogakwu, JCA

 

LIMITATION LAW – WHEN LIMITATION LAWS ARE ACTIVATED

By all odds, in the opinion of Ogunwumiju, JSC in APPEAL NO. SC/CV/1526/2022 (unreported), the learned law Lord held that limitation laws are not to be activated against a litigant who is not aware that his right has been violated. The Appellants’ submission that their action cannot be statute-barred when they are not aware that the Respondent had refused to accept their substituted candidate finds support in the said opinion. However, I reiterate that the said sole opinion is not the complete judgment of the Court, so it will be speculative to accept the same as the decision of the Supreme Court in the matter. It is necessary to state that the Appellants have the duty and responsibility to make available to this Court, the complete certified copy of the said unreported decision they relied upon in support of their case: CHIDOKA vs. FIRST CITY FINANCE CO. LTD (2012) LPELR (9343) 1 at 13, ONI vs. GOVERNOR OF EKITI STATE (2019) LPELR (46413) 1 at 13-14, UGO-NGADI vs. FRN (2018) LPELR (43903) 1 at 22 and PDP vs. NWEBONYI (2022) LPELR (57144) 1 at 16.

Be that as it may, the law is that where there are conflicts in the decisions of the apex Court, the subordinate Courts are to follow the decision that is later in time. In this regard, the unreported case of APPEAL NO. SC/CV/1526/2022 and the opinion of Ogunwumiju, JSC therein, which made knowledge of the infraction complained of as the determinant of when the cause of action arose was decided on 27th January 2023. The case of EGBODO vs. APC (supra) which I have already set out in this judgment to the effect 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, was decided by the apex Court on 24th February 2023. Therefore, it is the said latter decision that this Court is bound to follow based on the doctrine of stare decisis. See CARDOSO vs. DANIEL (1986) 2 NWLR (PT 20) 1 at 38-39, OBIUWEUBI vs. CBN (2011) 3 SCNJ 166, OSAKUE vs. FCE ASABA (2010) 10 NWLR (PT 1201) 1 at 37 and RAB OIL NIG LTD vs. OBILEYE (2021) LPELR (53467) 1 at 21-22. – Per U. A. Ogakwu, JCA

 

STATUTE BARRED – DETERMINING IF AN ACTION IS STATUTE BARRED

Now, the crux of this matter remains whether the lower Court rightly held that the action was statute-barred. As already stated, the computation of the limitation period by the stipulation of Section 285 (9) of the 1999 Constitution as amended, commences “from the date of the occurrence of the event, decision or action complained of in the suit.” The settled legal position is that the effective computation period starts from the date of the occurrence of the event, decision or action complained of, and not when the aggrieved person became aware of the event, decision or action complained of: KARSHI vs. GWAGWA (supra), EZE vs. UMAHI (supra) and EGBODO vs. APC (supra). – Per U. A. Ogakwu, JCA

PRE-ELECTION SUITS – COMPUTING TIME IN PRE-ELECTION SUITS

Firstly, pre-election suits are sui generis and there is no exception to the days when calculating for the purpose of statute of limitation. The simple implication is that having failed to file suit within 14 days from the date cause of action accrued, this suit is statute-barred.

Assuming without conceding that public holidays are excluded from the calculations, this Court takes judicial notice of the fact that the Federal Government only declared the 26th and 27th of December, 2022 as public holidays and 2nd of January, 2023 as public holiday to mark the New year celebrations. Deducting those 3 days from the 19 days will still give 16 days.

Whichever way the matter is looked at, the suit of the Plaintiff is irredeemable and has lost its legal footing. Without more, this suit has lost its legal footing and same cannot be maintainable in law. The consequence of an action being caught in the web of statute of limitation is stark and terminates the suit even before it is heard. – Per U. A. Ogakwu, JCA

 

APPEAL – WHEN A DIFFERENT CASE THAN THE CASE PRESENTED AT THE LOWER COURT IS MAINTAINED ON APPEAL

The above pericope from the decision of the lower Court cannot be faulted. The languid efforts of the Appellants on appeal to change the narrative on when the cause of action arose is vain and ineffectual. Such a volte face is unacceptable as justice is much more than a game of hide and seek. A party cannot maintain on appeal, a case different from that which was presented at the lower Court: AJIDE vs. KELANI (1985) LPELR (302) 1 at 35, YUSUF vs. ADEGOKE (2007) LPELR (3534) 1 at 42-43, NWOSU vs. PDP (2018) LPELR (44386) 1 at 58-63 and AJAYI (RANTIPE) vs. ALARAB PROPERTIES LTD (2021) LPELR (56073) 1 at 30. – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

1.  Constitution of the Federal Republic of Nigeria 1999 (as amended)
2.  Electoral Act, 2022
3. Court of Appeal Rules, 2021
4. INEC Timetable & Schedule of Activities/Guidelines for 2023 General Election

CLICK HERE TO READ FULL JUDGMENT