Besong v. Ochinke & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, J.S.C. (Delivering the Lead Judgment)

This appeal challenges the judgment of the Court of Appeal, Calabar Division, delivered on 21st October, 2022 in appeal No. CA/C/288/2022 wherein the Court struck out the Appellant’s suit before the Federal High Court, Calabar Division for being statute barred after the trial Federal High Court had granted the reliefs sought by the Appellant.

BRIEF FACTS OF THE CASE
The Appellant as Plaintiff commenced the suit at the trial Court by an Originating Summons filed on 10th June, 2022. By the said Originating Summons, the Appellant submitted two questions for the trial Court’s consideration thus:

“1. Whether the primary election of the 1st Defendant purportedly held/conducted on the 23rd day of May 2022 in Cross River State, to elect the Ikom/Boki Federal Constituency Flag bearer of the 1st Defendant for the 2023 Federal House of Representative elections in Cross River State is not altogether invalid, null and void, having regards to Sections 51, 65, 77 and 84 of the Electoral Act 2022 read together with the relevant Sections of the Constitution and the Electoral Guidelines of the 1st Defendant.

2. Whether the purported declaration of the 2nd Defendant as the winner of the said primary elections and his return as the Ikom/Boki Federal House of Representative Candidate of the 1st Defendant following the said purported primary election is invalid, null and void and of no effect having regards to the flagrant breach of Sections 51, 65, 77 and 84 of the Electoral Act 2022 and the Constitution and Electoral guidelines of the 1st Defendant for the conduct of the Primary elections of the 1st Defendant in Ikom/Boki Federal Constituency of Cross River State.”

​Upon the determination of the above questions, the Appellant sought the following reliefs:

“1 A DECLARATION that the primary election of the 1st Defendant purportedly held/conducted on the 23rd day of May 2022 in Cross River State, to elect the Ikom/Boki Federal House of Representative Flag bearer of the 1st Defendant for the 2023 House of Assembly elections in Cross River State is altogether invalid, null and void and of no effect, having regards to the provisions of Sections 51, 65, 77 and 84 of the Electoral Act 2022 and the Constitution and Electoral guidelines of the 1st Defendant.

2. A DECLARATION that the purported declaration of the 2nd Defendant as the winner of the said primary election and his return as the Ikom/Boki Federal House of Representative Candidate of the 1st Defendant at the said purported primary is invalid, null and void and of no effect having regards to the flagrant breach of the provisions of Sections 51, 65, 77 and 84 of the Electoral Act 2022 and the Constitution and Electoral Guidelines of the 1st Defendant for the conduct of the Primary elections of the 1st Defendant in Cross River State.
3. AN Order setting aside the purported declaration of the 2nd Defendant as the winner of the said primary election and his return as the Ikom/Boki Federal House of Representative Candidate of the 1st Defendant at the said purported primary election of the 1st Defendant.
4. AN Order mandating/directing the 1st Defendant to follow and conduct valid and proper primary election in accordance with the provisions of the Electoral Act 2022 and the Guidelines and Constitution of the 1st Defendant.
5. AN Order restraining the 3rd Defendant from recognizing the 2nd Defendant as the Ikom/Boki Federal House of Representative Candidate of the 1st Defendant in Cross River State based on the purported primary election held on 23rd May 2022 or any other primary elections not done in strict compliance with the provisions of the Electoral Act 2022 and the Constitution and Guidelines of the 1st Defendant.

6. ANY OTHER ORDER OR ORDERS as the Hon. Court may deem fit to make in the circumstances of this case.”

The Originating Summons was supported by an Affidavit with exhibits attached as well as a Written Address. In response to the Originating Summons, the 2nd Respondent as 1st Defendant filed a Counter-Affidavit and Written Address, while the 1st Respondent as 1st Defendant also filed a Counter-affidavit and Written Address. In response, the Appellant filed a Further and Better Affidavit, while the 2nd Respondent also filed a Further Counter-Affidavit.

​The brief facts of the case that culminated in this appeal can be compressed as follows: The 2nd Respondent (PDP) held its primary election to select its candidate for the position of member of the House of Representatives representing the Boki/Ikom Federal Constituency of Cross River State on 23rd May, 2022. The result sheet, Exhibit C, shows that upon conclusion of the exercise, the 1st Respondent emerged winner with 27 votes, the Appellant finished second with 21 votes and another contestant had 18 votes.

The Appellant alleged that seven non-delegates voted in favour of the 1st Respondent and appealed to the House of Representatives Appeals Committee for Cross River State of the 2nd Respondent, but the Committee dismissed his appeal. See Exhibit F, the proceedings of the Appeals Committee. He thereafter wrote a letter of protest to the 2nd Respondent’s National Organizing Secretary, after which it was then concluded by the party that the exercise was marred by irregularities and another primary election was ordered.

This led to the writing of Exhibit H on 31st May, 2022, by which the 3rd Respondent (INEC) was informed of the cancellation of the initial primary election due to over-voting and a rerun election scheduled for 4th June, 2022. In a twist of events, the 1st Respondent subsequently released a memo as well as a press statement dated 3rd June, 2022, cancelling the scheduled rerun. See Exhibits PDP-1 and PDP-2. When the election was not held on 4th July, 2022 as rescheduled, the Appellant filed his suit before the trial Court.

The 1st and 2nd Respondents in their respective Counter-affidavits claimed that the election was rescheduled for 4th June only as a precaution in the event that the election was found to have been marred by irregularities. It was stated that having found that the original primary election was properly conducted, the rescheduled election was cancelled.

In their respective Written Addresses, the 1st and 2nd Respondents contended that the suit was statute barred having been instituted outside the period of 14 days stipulated by Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). They were of the view that the Appellant’s cause of action accrued on 23rd May, 2022 when he lost the primary election conducted on that day.

In response to the issue, the Appellant contended that his cause of action did not accrue until the 4th of June when the 2nd Respondent failed to conduct the rerun election.

​When the matter came up for hearing at the trial Court, respective counsel for the parties adopted their processes and each of them urged the Court to decide the suit in favour of their respective postures. The matter was then adjourned for judgment. In its judgment delivered on 16th September, 2022, the learned trial Judge held that the Appellant’s suit was not statute-barred as the cause of action did not accrue until 4th June, 2022 when the 2nd Respondent failed to conduct the rescheduled primary election.