Independent National Electoral Commission (INEC) v. New Nigeria Peoples Party (NNPP)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, JSC (Delivering the leading judgment)

The respondent as plaintiff at the trial court vide originating summons sought for an order directing the appellant to accept and publish the names of the respondent’s candidates for the 2023 general elections as replacement for the names of candidates already forwarded and submitted by the respondent but who voluntarily withdrew their candidature and resigned their membership of the respondent.

The respondent thereafter communicated this to the appellant and gave it notice to conduct fresh primary election as required by law. This was refused by the appellant on the ground that the time to conduct fresh election as stipulated in the appellant’s Timetable and Schedule of Activities for 2023 general election had elapsed and section 33 of the Electoral Act, 2022, giving 90 days for the purpose of withdrawal and substitution was no longer available to the respondent.

This consequently shut the respondent from replacing its candidates that have resigned and withdrawn their candidature. In approaching the Federal High Court, the respondent sought for these reliefs:

1. A declaration that by virtue of the provision of sections 29 (1), 31 and 33 of the Electoral Act, 2022, the defendant does not have the constitutional or statutory powers to prevent the plaintiff from replacing its candidates that voluntarily withdrew their candidature for the 2023 general election.
2. A declaration that the Independent National Electoral Commission’s Timetable and Schedule of Activities for 2023 General Election does not supersede the Electoral Act, 2022.
3. A declaration that by virtue of sections 65(2) (b), 106 (d), 177(c) and 187(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the defendant cannot recognize candidates who have withdrawn their membership of the plaintiff as plaintiffs candidates for the 2023 general election.
4. An order directing the defendant to allow the plaintiff submit the names of all the candidates it has replaced with those who voluntarily withdrew their candidature for the 2023 general election.
5. An order directing the defendant to accept and publish the names of all the candidates forwarded by the plaintiff for replacement as the plaintiffs candidates for the 2023 general election.
6. And for such other orders that this honourable court may deem fit to make that would meet the justice of the case.

Both the trial and lower courts concurrently decided against the appellant, hence this appeal, wherein the appellant seeks for determination:

“1. Whether the lower court was right in its findings that the provisions of section 285(9) (supra) in the class of statute of limitation being a statutorily procedural defence, right of a defendant to seek the termination of a suit in limine may be waived and cannot be raised for the first time in the Court of Appeal not affecting the substantive jurisdiction of a court to hear a matter.

2. Whether the lower court was right in its findings when it held:

“Thirdly and worst of all, neither in the appellant’s ground of appeal nor in any of the particulars enumerated under the grounds is there any mention or hint of a complaint that the respondent’s suit was statute barred. An issue distilled for determination in an appeal must be derived and flow from a ground or grounds of appeal, failing which the issue formulated is liable to be struck out as incompetent”

3. Whether the lower court was right when it held that the evaluation of the trial court of the affidavit evidence placed before it by the parties was proper and affirmed the conclusion of the trial court that appellant has the power to issue exhibit INEC 1 but still held that exhibit INEC 1 is in conflict with the provision of the Electoral Act, 2022.
4. Whether the lower court was right when it failed to be bound by its previous decisions and the decision of this honourable court which is bound to follow in line with the principle of stare decisis.”

The respondent contrariwise distilled these issues for determination:

1. Whether or not in the light of abundantly established evidence of due compliance with the Electoral Act, 2022, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the laid down procedure for the conduct of primary election for the 2023 General Election by the respondent and duly evaluated by the lower courts, the apex court can disturb the judgment concurrently reached by the trial court and the court below.
2. Whether or not the suit filed by the respondent can be said to be statute barred, and if so, whether the defence of statute of limitation will avail the appellant.

I will appositely utilize the issues formulated by the respondent as covering the subject matter for the determination of this appeal. However, issue two shall be considered first, since by its nature, it may determine the appeal one way or the other.

Issue one:

Whether or not the suit filed by the respondent can be said to be statute barred, and if so, whether the defence of statute of limitation will avail the appellant.

The learned silk to the appellant tackled this issue under his issues one and two and submitted that a jurisdictional issue bordering on statute of limitation can be raised at any time and even suo motu by the court. He cited Nwoko v. Waoboshi (2021) 50 WRN 177; (2020) 13 NWLR (Pt. 1742) 395. Thus, that the lower court cannot hold that the appellant has waived the issue since the provision of section 285 (9) of the Constitution cannot be waived. Also, that the issue of limitation not flowing from the ground of appeal is not supported by facts and arguments placed before it. he urged this court to set aside the finding of the lower court and resolve this issue in its favour.

The respondent’s learned silk argued that the contention of the respondent is the interpretation of sections 31, 33, other relevant sections of the Electoral Act, 2022 and the Constitution, that section 33 of the Electoral Act, 2022, cannot operate outside the appellant’s Timetable and Schedule of Activities for 2023 General Election and that the respondent’s suit filed on 12/9/2022 does not violate the provision of sections 285(9) of the 1999 Constitution (as amended) and 33 of the Electoral Act, 2022.

That the notices of withdrawal communicated to the appellant was done within 14 days prescribed by the law. Hence, the suit was not statute barred. He further submitted that the defence of statute of limitation must be specifically raised at the trial. He cited Guruyel v. Bara & Ors. (2018) LPELR-44399, Adekayaoja v. Fakeye (2012) 43 WRN at 123. He prayed this court to resolve this issue in its favour and dismiss the appeal.