Independent National Electoral Commission (Inec) v. Austine Amechi Okpaku & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal High Court, Enugu Judicial Division, holden at Enugu, delivered on the 8th December, 2022 by Ogunbanjo, J.

At the lower court, the respondents filed an originating summons on the 14th October, 2022 wherein they sought a determination of the following questions:

1. Whether by the express and combined interpretation of provisions of sections 31(1), 32 and 33 of the Electoral Act, 2022, by the letter of voluntary withdrawal sworn on oath and the 3rd plaintiffs letter to the defendant, the 2nd plaintiff has voluntarily and effectively withdrawn as the 3rd plaintiffs Enugu State House of Assembly Candidate for 2023 Ezeagu State Constituency Election.
2. Whether by the express interpretation of sections 31, 32 and 33 of the Electoral Act, 2022 and the 3rd plaintiffs letter to the defendant, the 1st plaintiff is the duly nominated candidate of the 3rd plaintiff for the Enugu State House of Assembly 2023 Ezeagu State Constituency Election.
3. Whether by the express and combined interpretation of sections 32(1) and 33 of the Electoral Act, 2022 and 3rd plaintiffs letter to the defendant, the defendant is under a statutory duty or obligation to recognize, accept and publish the name of the 1st plaintiff as the 3rd plaintiffs duly nominated Enugu State House of Assembly Candidate for 2023 Ezeagu State Constituency election.

On the favourable determination of the listed questions, the respondents then sought the following reliefs:

1. A declaration that by the express and combined interpretation of the provisions of sections 31(1), 32 and 33 of the Electoral Act, 2022, and the letter of voluntary withdrawal sworn on oath and the 3rd plaintiffs letter to the defendant, the 2nd plaintiff has voluntarily and effectively withdrawn as the 3rd plaintiffs Enugu State House of Assembly Candidate for Ezeagu State Constituency Election.
2. A declaration that by the express and combined interpretation of sections 31, 32 and 33 of the Electoral Act, 2022 and the 3rd plaintiffs letter to the defendant, the 1st plaintiff is the duly nominated candidate of the 3rd plaintiff for the 2023 Enugu State House of Assembly election for Ezeagu State Constituency Election.
3. A declaration that by the express interpretation of provisions of sections 32(1) and 33 of the Electoral Act, 2022 and letter of 3rd plaintiffs to the defendant, the defendant is under a statutory duty or obligation to recognize, accept and publish the name of the 1st plaintiff as the 3rd plaintiffs duly nominated Enugu State House of Assembly Candidate for 2023 Ezeagu State Constituency election.
4. An order of perpetual injunction restraining the defendant, its servants, agents, workers, officers, privies or howsoever called from neglecting, failing and or refusing to recognize, accept and publish the name of the 1st plaintiff as the 3rd plaintiffs duly nominated House of Assembly Candidate for 2023 Ezeagu State Constituency election.

The appellant failed to appear to the action and equally failed to any process to contest the action. On being satisfied however that all the processes in the action including hearing notices were duly served on the appellant, the learned trial Judge set down the action for hearing and directed the personal appearance of the 2nd respondent.

On the hearing date, the 2nd respondent confirmed her voluntary withdrawal of her nomination after which learned counsel for the respondents argued the originating summons and judgment was reserved. In the judgment subsequently delivered on the 8th December, 2022, the reliefs sought by the respondents were found meritorious and were all granted.

Dissatisfied, the appellant invoked the appellate jurisdiction of this court via a notice of appeal filed on the 21st December, 2022 containing four grounds. At the hearing of the appeal, Mr. Ibrahim, SAN adopted the appellants brief filed on the 3rd January, 2023 as well as the reply brief filed on the 19th January, 2023 as the arguments of the appellant in this appeal while Mr. Anumnu adopted the respondents brief filed on the 17th January, 2023 as the arguments of the respondents in contesting the appeal.

The appellant distilled three issues for determination while the respondents distilled two issues. The only issues drawn from the grounds of appeal are those of the appellant while the issues of the respondents had no bearing with the grounds of appeal. I shall accordingly adopt the issues of the appellant. The said issues are as follows:

1. Whether in view of the respondents exhibit APC2 attached to the affidavit in support of the originating summons deposed to at paragraph 10 thereof vis-a-vis the findings of the trial court thereon, the case of the respondents is not statute-barred. (Distilled from ground 1 of the notice of appeal).
2. Whether the trial court evaluated the affidavit evidence placed before it by the respondents before arriving at the conclusion that exhibit APC2 was submitted to the applicant. (Distilled from ground 2 of the notice of appeal).
3. Whether the trial court was right in sustaining the reliefs sought by the respondents. (Distilled from ground 3 of the notice of appeal).

The first issue raises the fundamental point of jurisdiction which must be the appropriate take off point. The argument of Mr. Ibrahim, SAN on this issue relying on a plethora of judicial authorities, was that pursuant to section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the respondents had 14 days of the accrual of their cause of action to file their suit. He argued that from exhibit APC2 exhibited to the affidavit in support of the originating summons, the cause of action herein accrued on the 10th August, 2022 when exhibit APC2 was written but that the action was not filed until about 65 days thereafter on the 14th October, 2022 which thereby rendered the action statute barred.

Contrariwise, Mr. Anumnu argued that the appellant ought to have raised the issue of limitation in its averments at the trial court but failed to do so. Learned counsel conceded that issues of jurisdiction could be validly raised for the first time on appeal but argued that the action was not statute barred as by the averments of the respondents, the cause of action arose on the 4th October, 2022 which the appellant fixed for publication of the final list of candidates for State House of Assembly elections nationwide.

As earlier stated, the issue of jurisdiction is fundamental. It is the foundation and pivot of the exercise of judicial power. If a court lacks jurisdiction, it automatically lacks the necessary competence to try the case. A defect in competence is very fatal because the entire proceedings would be null and void ab initio however well conducted or well decided they might otherwise be. See I.G.P. v. Aigbiremelen (1999) 13 NWLR (Pt. 635) 443 and Min. for Works v. Tomas (Nig.) Ltd. (2002) 2 NWLR (Pt. 752) 740 at 788 – 789.

In issue here is section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus:

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 event, decision or action complained of in the suit.

It is not in contention between the parties that this suit is a pre-election matter as envisaged by the above provisions neither was it contested that an issue of jurisdiction could be raised for the first time on appeal. The position of the law is abundantly clear that a limitation legislation has the effect of extinguishing a cause of action once such has not been ventilated within the prescribed period. In other words, where a limitation period is in existence a litigant who is aggrieved and has a cause of action must not approach the court at his own pleasure but must be guided by the stipulated time otherwise he loses the right to litigate on that issue as the impact of the limitation law effectively deprives the courts of the requisite jurisdiction to entertain his claim. See Independent National Electoral Commission v. Ogbadibo Local Government (2015) 42 WRN 116; (2015) LPELR-24839(SC).