Alh. Faruk Maiturare V. Hon. Aminu Waziri Tambuwal & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AHMAD OLAREWAJU BELGORE, J.C.A. ( Delivering the Leading Judgment)

The Appellant herein filed a civil action, as a plaintiff, at the Federal High Court, Sokoto against three defendants who are now the Respondents claiming the following reliefs :-

“1. A declaration that the substitution of the plaintiff with the 1st Defendant by the 2nd Defendant as its candidate for the election into the Tambuwal/Kebbe Federal Constituency of Sokoto State for the April 2007 election is unlawful, wrongful, illegal, null and void.

2 A declaration that the substitution or replacement of the Plaintiff by the 3rd Defendant on a letter of substitution from the 2nd Defendant for the Tambuwal/Kebbe Federal Constitution of Sokoto State for the April 2007 election is unlawful, wrongful, illegal, null and void.

3. A declaration that the return and declaration of the 1st Defendant as duly elected member representing Tambuwal/Kebbe Federal Constituency in Sokoto state is unlawful, wrongful, illegal, null and void.
4. A declaration that the Plaintiff’ is the due and lawful candidate/aspirant of the 2nd Defendant having been returned unopposed at the House of Representatives primary Congress of November 25, 2006 for the Tambuwal/Kebbe Federal Constituency and same submitted to the 3rd Defendant as its candidate for the 2007 House of Representatives Election.
5. A declaration that the Plaintiff is the lawfully and duly elected member of the House of Representative in the 2007 General Election representing the Tambuwal/Kebbe Constituency of Sokoto State on the platform of the 2nd Defendant and not the 1st Defendant
6. An order of this Court directing/Compelling the 3rd Defendant to issue a Certificate of return to the Plaintiff as the duly elected member of the Federal House of Representatives representing Tambuwal/Kebbe Federal Constituency of Sokoto State in the 2007 General Elections.

That was the Appellant’s claim, before the Federal High Court, Sokoto (now referred to as “The lower Court”), both in his writ of summons and the statement of claim filed on the 29th day of January, 2008.

1st and 3rd Respondents filed pleadings and raised preliminary objection to the suit as constituted. The main plant of their objection was that the action was filed in violation of the provision of Section 2 (a) of the Public Officers (Protection) Act, Laws of the Federation, 1990.

The lower court took submissions from counsel in respect of the preliminary objection and in a considered ruling, held that it had jurisdiction as against an election tribunal to entertain the Appellant’s claim. On the vexed issue of the action being statute barred, the learned trial Judge held, inter alia, that-

“I can see vividly a case of tardiness and even perhaps a complacency which might have lately been rudely shaken by the far reaching decision in AMAECHI’S case.”

The lower court concluded in the following terms:-

“In the instant case, the Plaintiff has alleged that his name was substituted about one and half month to the election, which means his name was substituted about 45 days to the election which took place in April. The Plaintiff’s cause of action accrued from the date of substitution and the period for the purpose of limitation began to run from that date. His right of action, in my view, had 45 days after the conduct of the election. He did not bring this action within this period until after five and half months after his cause of action has extinguished. No doubt he had indulged in dilatoriness, a fatal procrastination that consumed his right of access to court and for this delay his action must succumb to an ultimate perdition. He has no cause of action left and his case must be dismissed and it is so dismissed.”

It is against this decision that the instant appeal has been brought.

Two grounds of appeal were filed along with the notice of appeal. The two grounds read thus :-

“1. The learned trial Judge erred in law when he held “His right of action in my view had 45 days after the conduct of the election, he did not bring his action within this period until after five and half months after his cause of action has been extinguished”, thereby occasioning a miscarriage of justice.

PARTICULARS OF ERROR