Every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event

FATI KAKENNA ALKALI MONGUNO v. ALL PROGRESSIVE CONGRESS & ORS
CITATION: (2019) LPELR-47740 (CA)

In the Court of Appeal
(Jos Judicial Division)
ON FRIDAY, 7TH JUNE, 2019
Suit No: CA/J/153/2019

Before Their Lordships

UCHECHUKWU ONYEMENAM, JCA
MUDASHIRU NASIRU ONIYANGI, JCA
BULOUKUROMO MOSES UGO, JCA

Between

FATI KAKENNA ALKALI MONGUNO -Appellant(s)

And

1. ALL PROGRESSIVE CONGRESS
2. SENATOR ABUBAKAR KYARI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION -Respondent(s)

LEAD JUDGMENT DELIVERED BY UCHECHUKWU ONYEMENAM, J.C.A.

FACTS OF THE CASE
This is an appeal against the decision of the Federal High Court. At the trial Court, the Appellant’s Originating Summons was filed on October 30, 2018. The Appellant’s case is that the Originating Summons is a challenge of the decision of the Appeal Committee of the 1st Respondent in the return of the 2nd Respondent as the candidate of the 1st Respondent owing to several infractions. The 1st and 2nd Respondents filed a Notice of Preliminary Objection on November 21, 2018.

The learned trial Judge after considering the objection of the 1st & 2nd Respondents held that the suit was statute barred thereby robbing the trial Court of its jurisdiction to determine the matter. The learned trial judge after upholding the objection dismissed the Appellant’s Claim, without making pronouncement on the substantive suit.

Aggrieved with the decision of the High Court, the appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION
The Court of Appeal determined the appeal on a sole issue which is: “Whether the trial Court was right in his evaluation of the evidence before it to reach the conclusion that the Appellant failed to indicate the date the Appeal Committee report was made, and that the suit was statute barred.”

APPELLANT’S COUNSEL SUBMISSION
On issue one, Appellant submitted on the process of primary election and observed that the Guidelines for the Nomination of Candidates for the 2019 was attached as Exhibit 3. He contended that the Guidelines was made pursuant to the provisions of the Constitution of the 1st Respondent Exhibit 2; and that Exhibit 2 was made pursuant to the provisions of Section 222(c) of the Constitution of the Federal Republic of Nigeria. It was submitted that the courts enjoin party members to obey their party’s constitution and guidelines. Accordingly, the Appellant who followed the party’s guideline and appealed the declaration of the 2nd Respondent as the Borno North senatorial candidate for election had her cause of action begin to run when the Appeal Committee delivered its appeal report.

Also, that since the Appeal Committee’s report forms an integral part of the complaint of the Appellant, her cause of action accrued on October 15, 2018 when the 1st Respondent’s Appeal Committee on the Borno North Senatorial Election delivered its report.

Furthermore, Appellant submitted on the meaning and import of Section 285 (9) of the 1999 Constitution as amended and argued that the learned trial Judge had failed to give a broad interpretation to Section 285 (9) of the Constitution (4th Alteration) and thereby held that the principal “event, decision or action” complained of is the APC Governorship Primary Election of Borno state, thereby failing to take into cognizance the decision of the Appeal Committee on the primary election which formed an integral part of the complaint of the Appellant.

RESPONDENT’S COUNSEL SUBMISSION
On issue one, the Respondent submitted, noting the findings of the trial Court that the event that triggered the Appellant’s suit is the APC primary election of October 3, 2018 which is the date the cause of action arose upon the announcement of the 2nd Respondent as the winner of the election. That upon examination of the reliefs sought by the Appellant there is no iota of relief touching on any act or omission of the Appeal Committee and indeed in the entire gamut of the case. But that the Appellant’s case is against the primary election conducted on October 3, 2018 and the announcement of the 2nd Respondent as its winner and for purposes of statute of limitation, 3rd October, 2018 becomes the starting point and the relevant period.

Finally, that since the Appellant’s suit was filed outside of the statutorily prescribed period by the Constitution the trial court had no alternative than to dismiss it.

RESOLUTION OF ISSUES
In resolving the sole issue, the Court held that by Section 285 (9) of the Constitution, notwithstanding anything to the contrary in the 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. That the provision of Section 285(9) of the 1999 Constitution (as amended) is unambiguous and as such the words used therein ought to be accorded their ordinary grammatical meanings.

The Court proceeded to determine whether the Appellant’s cause of action was the conduct of the Borno North Senatorial primary election or the decision of the Appeal Committee. According to the Court, the Appellant’s Originating Summons complained that the APC Borno North Senatorial Primary Election of October 3, 2018 did not comply with the Electoral Act and the 1st Respondent’s guidelines. On the other hand, some paragraphs of the Appellant’s affidavit complained that the decision of the Appeal Committee by upholding the declaration of the 2nd Respondent as the Borno North Senatorial District candidate, and causing his name to be published by the 3rd Respondent as the 1st Respondent’s above described candidate is wrong.

According to the Court, the only recognizable cause of action under Section 87 (9) is a complaint of failure to comply with the provisions of the Electoral Act and the guidelines of a political party in the selection and nomination of a candidate of a political party for election. Therefore by a combined reading of Section 285 (9) of the Constitution and Section 87 (9) of the Electoral Act, an aspirant as Appellant in this case, who complains that any of the provisions of the Electoral Act and the Guidelines of her political party was not complied with in the selection or nomination of a candidate of the political party for election, has 14 days from the date of the occurrence of the event, decision or action complained of to seek redress at the Federal High Court or High Court of a state or FCT.

As such, from the Appellant’s Originating Summons and its supporting affidavit, the event that took place on October 3, 2018 was the APC Borno North Senatorial primary election, resulting in the decision that the 2nd Respondent emerged the winner. On the event or decision complained of in the action filed at the trial Court for failure to comply with the Electoral Act and Guidelines of the 1st Respondent, only one date was consistently stated in the Originating Summons and deposed to in the affidavit of the Appellant and which date is October 3, 2018. In the instant case therefore, what constitutes the cause of action of the Appellant by virtue of Section 87 (9) of the Electoral Act, from the Originating Summons and the affidavit in support is the Appellant’s complaint that on October 3, 2018, at the Borno North Senatorial primary election, after the other two contestants withdrew from the primary election, she remained unopposed but in disregard to the provisions of the Electoral Act and the 1st Respondent’s Guidelines, the 2nd Respondent who was not a candidate was declared the winner and the party’s Borno North Senatorial flag bearer for 2019 election in the indirect primary held on October 3, 2018. In view of this, the Appellant had a maximum period of 14 days under the Constitution to file the pre-election matter which she failed to do and as such, the case was therefore statute barred as correctly found by the trial Court.

The Court further held that the Appellant had no cause of action arising from the Committee’s report as the Appeal Committee’s report upheld the Appellant’s appeal and so was in favour of the Appellant.

Finally, the Court reiterated that the action maintainable under Section 87 (9) of the Electoral Act is restrictive and this is because the right of a political party to select or nominate its candidate for an election is exclusive to the party as that right cannot be curtailed except when the party violates its own Guidelines and the Electoral Act. Accordingly, any complaint no matter how closely related or connected to non compliance of the Electoral Act and Guidelines of a party if it is not a complaint against failure to comply with the Electoral Act and Guidelines of a party in the event of selection or nomination of a candidate of a political party for election; the same cannot be maintained as an action under Section 87 (9) of the Electoral Act.

HELD
In conclusion, the Court of Appeal found the appeal to be lacking in merit and same was dismissed.

Appearances:
Ibrahim K. Bawa, SAN with him, Abdul Mohammed, Chiemelie N. Onyia, Rabiu Alhassan Bawa, Mukaila Yahaya Mavo -For Appellant(s)
Yusuf Ali (SAN) and K.K. Eleja (SAN) with them, K.S. Lawan, I.O. Atofarati, A.O. Mohammed, R.T. Bamigboye -For 1st and 2nd For Respondent(s)

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