CORAM

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PARTIES

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YUSUF WALI APPELLANTS

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ALL PROGRESSIVE CONGRESS (APC) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The appeal herein is against the decision of the Federal High Court at Minna, where the Appellant’s claim was declared statute barred by the court. The Appellant together with one Barr. Abdul Hammed Garba had contested in the primary election of the All Progressive Party (APC), to represent Gurara State Constituency in Niger State House of Assembly held on 6-10-2018. At the conclusion of the election, the Appellant claimed to have been declared the winner of the election by the party, having scored the highest number of vote cast at the election. Upon the 3rd Respondent’s (INEC) publication of names of candidates for the election, the Appellant’s name was substituted with the name of the 2nd Respondent. Aggrieved by the action of the 1st Respondent (APC), the Appellant sought for redress at the trial court but the court dismissed same on the ground that the action was statute barred. Dissatisfied, the Appellant appealed to the court of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether given the entire circumstance of this case is related to the very nature of substitution particularly under Section 33 of the Electoral Act, 2010, As Amended, the Trial Courts decision to dismiss the suit on the premise that it is stature barred is correct and suitable. Whether considering the facts in support of the originating summons, the question for adjudications and relief sought, the trial judge was correct to have hard that the course of action of the appellant arose on 9th November, 2018. When the complain of the Appellant is that of publication made by the 3rd Respondent on 31/01/2019 in which the Appellant became aware on that day and suit was filed on 12-02-2019. Whether considering the facts in support of originating summons, the questions for determinations, the trial court was correct to have relied on exhibit INEC 1 located at pages 80 – 81 to have hold that it was the name of the 2nd Respondent that was published on 9th November, 2018 when the Appellant is saying it was his name that published on the 9th November, 2018, after which the 3rd Respondent used correction fluid Tipex to erase his name and published the 2nd Respondent name there by exhibiting Exhibit YWR 1 at pages 159,170 and 179 which clearly and boldly shows that it was the name of the Appellant that was written on the same and later the 3rd Respondent used tipex/correction fluid to erased the Appellant’s name and smuggled in the 2nd Respondent’s name. Whether by mere exhibition of time table and schedule of activities for 2019 General Elections by the Respondents at pages 94, 95 and 96 of the record without more, means that it was the name of 2nd Respondent that was displayed by the 3rd Respondent on the 9th November, 2018 as alleged by the 3rd Respondent on the 9th November, 2018 as alleged by the 2nd and 3rd Respondents and thereby necessitating the Appellant to have had a constructive notice

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RATIONES DECIDENDI

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LIMITATION OF ACTION – DETERMINATION OF WHEN AN ACTION IS STATUTE BARRED

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”On the general principle that it is the Originating Process that must be considered to determine if an action is statute barred, the courts restrain themselves from considering the processes filed by the defendant in response to the Originating Process, even when the objection was determined by the trial court in its final judgment after conclusion of evidence. The courts ignore other evidence in the case that disclose the actual cause of action and pretend that it does not exist. This in my view violates the fundamental principle of fair hearing that requires the court to consider all the evidence before it in its final judgment or to consider all the evidence on a point in determining that point.
The appellant on 8-2-2019 filed a counter affidavit in opposition to the 1st respondent’s notice of preliminary objection containing depositions similar to its counter affidavit in opposition to the 2nd respondent’s objection… Also where the objection is considered and determined after the conclusion of evidence by both sides, then the court cannot ignore the evidence before it and pretend it does not exist and determine the objection only on the basis of the originating processes. At that stage, all the processes and evidence before the court must be considered, especially where the objection is determined as part of the final judgment in the case, as has happened in this case. In Egbe v Adefarasin (supra) Supreme Court held that “where the defendant has raised an unanswerable plea of protection under the Public Offers Laws on the incontestable fact as the Respondent has done in this case, there is absolutely no basis for prying into the conduct of such a defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was a relevant consideration in determining the liability of the 2nd Respondent. The issue before court was whether the action was maintainable. It is not whether the 2nd Respondent was liable”. But the same Supreme Court has in many cases held that if the objection is determine after conclusion of evidence the court can on the evidence before it consider the legality, propriety or bona fide of the act complained about to find if it would be in the interest of justice to allow it protection by the statute of limitation. See for example, Nwankere V Adewunmi(1967) NMLR 45 at 48, Ekeogu V Arili (supra), Ibrahim V Judicial Committee(supra). In Egbe V Alhaji the Supreme Court considered if there was conflict between its earlier decision in Nwankere V Adewunmi and its later decision in Egbe V Adefarasin and held that there is no conflict as the facts of the two cases are different in that in Nwankere the application of the Act was considered on the basis of the issues joined in the pleadings and the evidence in the case, while in Egbe V Adefarasin it was considered in limine on the basis of the statement of claim only. The Supreme Court then held that if it is determined in limine, the trial court can only consider if the action is maintainable and cannot consider if the act or default sought to be protected was done bona fide or in pursuit of inordinate motives. It held that if it is considered after evidence has been elicited then the court would examine the evidence to find out if the act sought to be protected was carried out in bad faith or maliciously or for an illegal purpose”

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PLEADINGS – METHOD OF DENYING ALLEGATION OF FACT

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“It is trite law that where a party denies an allegation of fact he shall not do so evasively, but shall answer directly the point of substance. Where the facts are alleged with diverse circumstance, it shall not be sufficient to deny them generally as alleged, but with a full and substantial answer of the specific facts and circumstances alleged therein.”

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BURDEN OF PROOF – INSTANCE WHEN THE EVIDENTIAL BURDEN OF PROOF SHIFTS

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“The evidential burden then shifted to the respondents to rebut the case the appellant’s evidence established by virtue of S. 133(1) and (2) of the Evidence Act which provides that-
“133. (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”
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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999|Electoral Act 2010|Evidence Act

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