How time is computed in a pre-election action
In the Supreme Court of Nigeria
ON FRIDAY, 24TH MAY, 2019
Suit No: SC.363/2019
Before their lordships
MARY UKAEGO PETER-ODILI, JSC
MUSA DATTIJO MUHAMMAD, JSC
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
EJEMBI EKO, JSC
UWANI MUSA ABBA AJI, JSC
JAFAR SANI BELLO
1. ABBA K. YUSUF
2. PEOPLES DEMOCRATIC PARTY [PDP]
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC]
LEAD JUDGMENT DELIVERED BY MUSA DATTIJO MUHAMMAD, J.S.C.
FACTS OF THE CASE
This is an appeal against the decision of the Court of Appeal, Kaduna Division Coram: Hussein Mukhtar, Saidu Tanko Hussaini, and Oludotun A. Adefope-Okojie JCA delivered on March 15, 2019, affirming the judgment of the Kano State High Court delivered on January 14, 2019, and adjudging the suit commenced by the appellant (Jafar Sani Bello) as statute-barred.
On October 16, 2018, Jafar Sani Bello (plaintiff) filed an originating summons contesting the participation of the 1st respondent (Abba K. Yusuf) in the People’s Democratic Party (PDP) (2nd respondent)’s 2018 gubernatorial primary election in Kano State witnessed by the 3rd respondent (Independent National Electoral Commission (INEC). It was Jafar Sani Bello’s case that Abba K. Yusuf who did not comply with Section 8(8) of the Constitution of the People’s Democratic Party and paragraph 23(a) and (b) of the Party’s Electoral Guidelines for primary elections in his bid to rejoin the party could not have lawfully participated in the party’s Kano State gubernatorial primary election.
Jafar Sani Bello inter-alia sought the High Court’s declaration that, having come second in the primary election, he be declared the party’s duly elected candidate at the primary election, recognized and substituted as such by INEC as PDP’s candidate in the forthcoming governorship election in Kano State.
Abba K. Yusuf and PDP, in addition to their counter-affidavit filed in opposing the originating summons, raised a preliminary objection challenging the jurisdiction of the High Court on the ground that the action was statute-barred. The High Court upheld their preliminary objection and struck out Jafar Sani Bello’s suit.
Dissatisfied, Jafar Sani Bello appealed to the Court of Appeal, which dismissed the appeal and affirmed the High Court’s decision. It was against the concurrent decisions of the two Courts that the appellant appealed to the Supreme Court.
ISSUES FOR DETERMINATION
The Apex Court determined the appeal on the following issues: Whether the learned Justices of the Court of Appeal were right to hold that the suit was statute-barred being instituted outside the 14 days prescribed. Also whether the Court of Appeal was right that the computation of time was from the occurrence of the event.
APPELLANT’S COUNSEL SUBMISSION
Learned counsel for the appellant contended that appellant became aware of the cause of action which is the non-compliance with the provisions of Section 8 (8) of the Constitution of the PDP and Section 23 (a) and (b) of the PDP Electoral Guidelines for Primary Elections 2018 by the 1st respondent on the 4th October 2018 when he was informed by the PDP Ward Secretary of Diso, Kano State and so the accrual date of the cause of action would be October 4, 2018 and not October 2, 2018 when the PDP Kano Gubernatorial Primary Election was conducted as erroneously held by the Court of Appeal. He cited AJIBONA V KOLAWOLE & ANOR (1996) LPELR – 299; TUKUR IBRAHIM V ISHAQ UMAR & ORS (2013) LPELR – 22805 (CA); ADEOGA V FASHOGUN (2008) 17 NWLR (PT.1115) 149 AT 181.
It was submitted that the constitution is silent on whether the date of the occurrence of the event is included in the computation of the 14 days prescribed in Section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999, 4th Alteration. Therefore that considering the silence in the provision and when the appellant became aware of the occurrence of the event, he was within the 14 days stipulated. He referred to OBUSEZ & ANOR. V. OBUSEZ & ANOR. (2007) LPELR – 2197; IKPEAZU V OGAH (2017) 6 NWLR (PT.1562) 494-495.
Arguing further, learned counsel contends that in the reckoning when a cause of action arose, the day of the happening of the event that gave rise to the cause of action is excluded. The computation, learned counsel asserts, is therefore commenced with the next date after the event. In interpreting the provision of Section 285 (9) of the Constitution as altered, therefore, it was contended, that the lower Court wrongly included the date on which the primary election took place.
He finally urged the Court to resolve the issues in his favour and allow the appeal.
1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSION
For the 1st and 2nd respondents, it was submitted that the event, which was the participation of the 1st respondent in the primaries occurred 15 days before the filing of the suit and so robbed the trial Court of the jurisdiction to adjudicate. That equity does not aid the indolent. He cited OKOROCHA V PDP (2015) 1 EJSC 1 AT 45; FCDA V SULE (1994) 3 NWLR (PT.332) 25.
RESOLUTION OF ISSUES
In resolving the appeal, the Apex Court considered inter-alia, what a cause of action is, how it is determined, when it arises and when does time begin to run against a plaintiff for the purpose of limitation?
On the definition of the cause of action, the Court held that the phrase “cause of action” has been defined by the Supreme Court in FRED EGBE V. HON. JUSTICE J. A. ADEFARASIN (1987) LPELR — 1032 (SC), as the fact or facts which establish or give rise to a right of action. It is the factual situation that gives an aggrieved person the right to judicial relief. The cause of action is constituted by the entire set of circumstances which give rise to an enforceable claim. The Court cited in further support: ALHAJI WADA KUSADA V. SOKOTO NATIVE AUTHORITY (1968) LPELR — 25424. (SC) and CHIDI B. NWORIKA V. MRS ANN ONONEZE-MADU & ORS (2019) LPELR — 46521 (SC).
On what determines cause of action, relying on AG FEDERATION V. AG ABIA STATE & ORS (2001) LPELR — 24862 (SC) and OWURA & ANOR V. ADIGWU & ANOR (2017) LPELR — 42763 (SC) the Apex Court held that it is settled law that the totality of the plaintiff’s claim determines his cause of action. In the case at hand where the appellant’s action is pursuant to an originating summons, his reliefs and the averments in his supporting affidavit delineates his cause of action.
On when cause of action arises, it was stated on the authority of ATTORNEY GENERAL OF THE FEDERATION V. AG ADAMAWA STATE (2014) LPELR 2322 (SC) and ALHAJI HANAFI ZUBAIR V. ALHAJI ABDULLAHI ATANDA KOLAWOLE (2019) LPELR — 46928 (SC) that a cause of action arises on the date or from the time the breach of duty occurs which warrants the person adversely affected by the breach or the injury therefrom to sue in a law court to assert or protect his legal right that has been violated. Thus, a cause of action enures to the plaintiff the very moment a wrong is done to him by another which factual situation entitles the former to seek relief in the law Court by way of enforcement.
Finally, it was held that time begins to run against a plaintiff, for the purpose of limitation, from the date the cause of action accrues which, generally, is the date on which the incident or event giving rise to the cause of action occurs. Reliance was placed on JOHN EGBOIGBE V. NNPC (1994) LPELR — 992 (SC) and ACTION CONGRESS OF NIGERIA & ANOR V. INEC (2013) LPELR — 20300 (SC).
Applying the law to the case, the apex Court per PETER-ODILI, J.S.C. in his concurring judgment held that, it is difficult to push forward the position as espoused by the appellant that the cause of action arose when the appellant realized or got the knowledge of the event or issue. The reason is simple and logical as it is to render uncertain and tied to people’s convenience whenever a party decides to activate a Court process depending on his subjective whim.
The implication being that the statute of limitations would start to run at the point when the plaintiff/appellant in this instance put across as time of becoming aware of the happening of the event that he is aggrieved over. That position of uncertainty will aid indolence and give a one-sided subjective advantage to a party to the detriment of the other side.
It was held that it is now trite and even an over flogged cliche that equity does not aid the indolent. That is to say that if such a subjective stance is allowed to stand, it would encourage and breed uncertainty in the polity and create the ludicrous situation where a person can wake up a year or more after an election and swearing into an elective position to have a challenge to his nomination by way of substitution for election that brought the person to power.
The possible angles abound in this uncertainty and easily lead to a chaotic scene where the populace is not sure if a said elected person can remain there on the seat within a given period or even after he had had his tenure expended to have the intimacy of the occupation of the position challenged at any time. The law the Court held cannot recognise or endorse such a speculative situation and so everyone or every stakeholder must be watchful or vigilant of his legal rights. Reliance was placed on HASSAN V ALIYU & ORS. (2010) LPELR – 1357.
According to the Court, the stance of the appellant that October 4, 2018, when the appellant claimed to become aware that the 1st respondent had not rejoined the party cannot be the date of the cause of action’s accrual giving rise to his right to initiate the action for judicial relief.
It was held that the correct situation borne out of the record and sustained by the relevant legislation is that the cause of action arose if there was one at the date of the primary election and the result declared or announced which is October 2, 2018, and taking that date as a pointer. It was reiterated that by the time the appellant as plaintiff commenced his action by originating summons on October 16, 2018, he was way out of the 14 days prescribed under Section 285 (9) of the 4th Alteration to the Constitution of the Federal Republic of Nigeria 1999 (as amended).
It was also stated that in the computation of time in an electoral action including the pre-election one such as the present in the light of the constitutional alteration referred to as 4th Alteration the computation includes the very date on which the results were declared.
This is further highlighted under Section 141 of the Electoral Act 2006. Reliance was placed on GARBA V ADUA (2011) 13 NWLR (Pt.1263) page 1 at 17-18; Section 285 (9) of the 4th Alteration to the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides thus:- “285 (9) – 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 provision of Section 285 (9) was held to be in plain language self-explanatory and needs no outlandish interpretation on it.
It was concluded that the situation is cut and dried as the suit at the trial Court was statute barred and the jurisdiction of the Court well ousted thereby.
In a unanimous decision, the Supreme Court found the appeal lacking in merit and consequently dismissed same. The concurrent decisions of the lower Courts were further affirmed.
DR. N. A. ALIYU with him VICTOR IZIBILI
-For the appellant
EYITAYO FATOGUN with him KELVIN UGIABE and PASCHAL OBUCHI -For 1st — 2nd respondents.
-For 3rd respondent.
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