Independent National Electoral Commission (Inec) Vs. Chief Felix Onowakpoko (2017)
LAWGLOBAL HUB Lead Judgment Report
HON.JUSTICE S. D. BAGE
This appeal is against the judgment of the Court of Appeal, Benin Division delivered on the 28th day of May, 2015 which affirmed the judgment of the Federal High Court Warri suit No. FHC/WR/CS/60/2014, delivered on the 31st day of October, 2014. The Court of Appeal upheld the decision of the trial court and dismissed the appellant’s appeal. The lower court held inter alia, that the trial court had jurisdiction to entertain the suit and that the respondent’s cause of action at the trial court was not statute barred, and that there is continuance in the suppression of Isoko North State Constituency 1.
Aggrieved by the decision of the court below, the appellant filed a notice of appeal dated 14th day of August, 2015 containing (4) four grounds of appeal.
The facts that gave rise to this appeal is that, the respondents commenced the action at the Federal High Court Warri on 16th May, 2014 against the appellant. The respondents raised four (4) questions and claimed the following reliefs:-
“1. A Declaration that by virtue of the mandatory provisions of
Sections 6, 36, 91, 112 of the 1999 Constitution and other
enabling laws in that behalf, the Delta State House of Assembly
presently consisting of twenty-nine (29) members which is less
than three (3) or four (4) times the number of seats which Delta
State has in the national Assembly is not properly Constituted or
composed.
- A Declaration that the appellant does not have any power and/or
discretion whatsoever to suppress the existing Isoko North State
Constituency 1 with Constituency Code No. SC/17/DT in the Delta
State House of Assembly law fully created and approved by the
National Assembly (as contained in the National Electoral
Commission Delta State Voters and Candidate Education know your
Senatorial Districts, Federal and State Constituencies and Electoral
Wards in Delta State House of Assembly – 1st Assembly with specific
reference to No. 4 and 23 thereof) by omitting, failing, refusing and/or neglecting to include the Isoko North State Constituency 1 with
Constituency Code No. SC/17/DT in the approved list of state
constituencies previously suppressed as attached to the appellant’s
letter date of 2nd June, 2004 and addressed to the clerk of the National
Assembly, National Assembly Complex, Abuja.
- A Declaration that the appellant’s omission, failure, refusal and/or
neglect to restore and recognize the Isoko North State Constituency 1
with Constituency Code No. SC.17/DT by including it in the approved
list of state Constituencies previously suppressed as attached to the
Appellant’s letter dated 2nd June, 2004 and addressed to clerk of the
National Assembly, National Assembly Complex, Abuja is unlawful,
illegal, null, void and contrary to the mandatory, clear and express
provisions of Sections 91, 112 of the 1999 Constitution; thereby
constituting a flagrant violation of the constitutional rights of the
good people of Ozoro 1, Ozoro 2, Ozoro 3, Ofagbe/Ovrode, Okpe/Oyede,
Ellu/Aradhe Tows(that is Ozoro 1 , Ozoro 2, Ozoro 3, Ofagbe/Ovrode,
Okpe/Oyede, Ellu/Aradhe) comprising the Isoko North- State
Constituency 1 with Constituency Code SC/17/DT to be adequately
represented in the Delta State House of Assembly.
- A Declaration that the Appellant is enjoined by the mandatory provisions
of Section 6, 36,91 and 112. Of the 1999 Constitution and other enabling
laws in that behalf, to restore forthwith the long – suppressed Isoko North
State Constituency I with Code No. SC.17/DT in the Delta State House of
Assembly and Conduct election into the said Isoko North State Constituency 1
with Constituency code No. SC/17/DT in the Delta State House of Assembly.
No. SC.17/DT in the Delta State House of Assembly in Isoko North Local
Government Area of Delta State of Nigeria Comprising the Ozorol, Ozoro 2,
Ozoro 3, Ofagbe/Ovrode, Okpe/Oyede, Ellu/Aradhe Towns (that is Ozoro 1 , Ozoro 2, Ozoro 3, Ofagbe/Ovrode, Okpe/Oyede, Ellu/Aradhe) so as to bring the composition and numbers of the created, delineated and delimited constituencies in the Delta State House of Assembly in compliance with the mandatory provision of Section 91 and 112 of the 1999 Constitution and other enabling laws in that
behalf.
- An order directing and compelling the appellant either by herself, agent, servants, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant to conduct election forthwith into the Isoko North State constituency 1 with constituency code No. SC 17/DT in the Delta House
of Assembly for the purpose of electing the member representing the Isoko North
State constituency 1 with constituency code No. SC/17/DT. In the Delta State House
of Assembly and bring the composition and numbers of the created, delineated and delimited constituencies in the Delta State House of Assembly in compliance with
the mandatory provisions of Sections 91 and 112 of the 1999 Constitution and
other enabling laws in that behalf.
- A perpetual injunction restraining the appellant either by herself, agent, servants, privies, surrogates, staff or any person acting through the appellant and/or on the instruction or directive of the appellant from suppressing or further suppressing
the Isoko North State Constituency1 with Constituency code No. SC/17/DT in
the Delta State House of Assembly in Isoko North Local Government Area of Delta
State of Nigeria comprising the Ozorol, Ozoro 2, Ozoro3, Ofagbe/Ovrode, Okpe/Oyede, Ellu/Aradhe Tows (that is Ozoro 1, Ozoro 2, Ozoro 3, Ofagbe/Ovrode, Okpe/Oyede, Ellu/Aradhe) or doing anything howsoever that will have the adverse effect of suppressing and/or undermining the Isoko North Constituency 1 with constituency code No. SC.17/DT with a view to depriving the good people of Isoko North State Constituency 1, with constituency code No. SC.17/DT adequate representation in the Delta State House of Assembly or any other elections whatsoever in the Federal Republic of Nigeria.”
The originating summons was supported by a 57 Paragraphed affidavit and a number of documents.
The appellant, in reaction to the respondent’s originating processes, filed a notice of preliminary objection wherein it contended that the jurisdiction of the trial court to entertain the suit was statute barred, having not been instituted within three months after the accrual of the cause of action. It is contended therefore that the suit was incompetent.
In his consolidated judgment of 31st October, 2010, the learned trial judge dismissed the appellant’s preliminary objection and held that the complaints of the respondents is a continuous act which removes the protection granted by Section 2 (a) of the Public Officers Protection Act. The court further granted all the reliefs except prayer 8 sought by the respondent.
Aggrieved by the judgment of the learned trial judge, the appellant filed a notice of appeal dated 4th December 2014 containing four (4) grounds of appeal.
After hearing the argument from both parties the Court of Appeal delivered its judgment on 28th May 2015, wherein it affirmed the decision of the trial court and dismissed the appellant’s appeal.
Dissatisfied the appellant has further appealed to this court vide a notice of appeal dated 14th August, 2015, containing four (4) grounds of appeal.
In his brief of argument, the learned counsel for the appellant formulated the following issues for determination.
ISSUE No. 1
Whether the appellant is not protected by Section 2 (a) of the
Public Officers Protection Act Cap. P. 41 of the Federation of
Nigeria, 2004 having regard to the circumstances of this case
(Ground 1)
ISSUE No. 2
Whether the Court of Appeal was right in the circumstances of
this case in holding that there is no further need nor is it necessary
for the appellant restoring the suppressed constituency to resort to
Section115 of the Constitution dealing with the alteration of state
constituency boundaries in accordance with Section 114 of the
Constitution (Ground2).
ISSUE No. 3
Whether the Court of Appeal w as right in relying on its judgment
in the case of OJULOCAL GOVERNMENT V. INEC (2007) 14 NWLR
(Pt. 1054) 242 having regard to the circumstance of this case
(Ground 3).
ISSUE No. 4.
Whether the Court of Appeal was right on ascribing probative
values to Exhibits 3, 4, and 5 and in holding that the constituency
under consideration had been in existence along with other
constituencies with election held therein prior to the year 1999
when appellant excised the respondent and refused to conduct
elections into the constituency (Ground 4).
On the other-hand, the respondent in his brief formulated the same four issues with that of appellant.
Issue No. 1 as raised by the appellant herein challenges the competence of respondent’s suit, which the appellant has contended that by virtue of Section 2 (a) of the Pubic Officer’s Protection Act Cap. P. 41, Laws of the Federation of Nigeria, 2004, the respondents suit is statute barred. The learned counsel for the appellant contended that the court hearing found that the difference between the time the Isoko North State Constituency 1 was excised and suppressed and the time of coming-in to life of the action was about 15 years period in excess of the three months the Act allocated for commencement for any act against the public officer, the lower court for this fact alone should not have proceeded to hold that there is continuance in the suppression of the said Isoko North State Constituency.
In other words it is the contention of the appellant that the court below having found that the respondents commenced their joint action against the appellant months in excess of the 3 months the Act allowed for commencement of action, neglect or default against any wrong doing the court ought to have dismissed the suit of the respondents.
He argued that this court in the case of AJAYI VS ADEBIYI (2012) 11 NWLR (Pt. 1310) 137 at 169 per Adekeye, JSC has this to say on the essence of statute of limitation. “The essence of limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute where a statute of limitation prescribes a period within which an action should
be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had elapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action.
The yardsticks to determine whether an action is statute barred are:-
A) The date when the cause of action accrued.
B) The date of commencement of the suit as indicated in
the writ of summons,
C) Period of time prescribed to bringing an action to be
ascertained from the statute in question. Time begins to
run for the purposes of limitation law7 from the date the
cause of action accrues -reliance was put on SULGRAVE
HOLDINGS INC. VS FGN (2012) 17 NWLR (Pt. 1329) 309.
The learned counsel has submitted that the decision of the lower court on this threshold issue of statute of limitation applicable to the respondent’s suit has completely defeated the purpose and intendment of Section 2 (a) of the Public Officers Protection Act, 2004. The respondent’s suit ex facie was premised on a spent cause of action while the decision of the lower court on this issue is contrary to the binding decision of this court on such issue. In AJAYI VS ADEBIYI (2012) 11 NWLR (Pt.1310) 137 at pages 196 -197 this court has this to say:-
“On the strong position of the appellant that the action was statute barred and could not really take off, I will want to recapture the essence of a statute of limitation as per Tobi, JSC (as he then was) states in MERCAN LIFE BANK (NIG) LTD VS FETECO LTD (1998) 3 NWLR (Pt. 540) 143 at 156 paragraphs G – H as follows:-
A statute of limitation of action designed to stop or avoid situation, w here a plaintiff can commence action anytime
he feels like doing so, even when humans’ memory would
have normally faded and therefore failed. Putting it in
another language, by the statute of limitation a plaintiff has
no freedom of air to sleep or slumber and wake up at his
own time to commence an action against the defendant. The
different statute of limitation which are essentially founded
on the principle of equity and fair play will not avail such a
sleeping or slumbering plaintiff “.
The learned counsel for the respondents on this issue submitted that the court below correctly held that the time for the institution of the action by the respondents had not elapsed or expired as this could only expire on the cessation of the alleged wrong, that is, the suppression of Isoko North state constituency 1, he submitted that since 1998 till 2011, the appellant has been conducting her general elections into Delta State House of Assembly without the Isoko North State Constituency 1. He submitted that the appellant’s act of excising , suppressing the Isoko North State House of Assembly which is the cause of action still continues and subsist till date. It has not ceased at all. He relied on the provision of Section 2 (a) of Public Officer’s Protection Act where the Section provided for an exception in case of continuance of damage or injury, the action shall be within three months next after the ceasing thereof. The learned counsel urged this court not to disturb the concurrent findings of facts of the two lower courts below.
The learned counsel further submitted that where a public officer acted in bad faith and with no semblance of legal justification in the performance of his public duty, he cannot enjoy the protection under Section 2 (a)’of the Public Officers Protection Act. He argued that the appellant’s act of excising the Isoko North State Constituency is unlawful, illegal and unconstitutional. There is no law which empowers or authorizes the appellant to excise, suppress and abandon the Isoko North Constituency 1. He put reliance on the case of CBN VS OKOJIE (2004) 10 NWLR (Pt 882) pp 488 at PP 523 B-D.
The question here is whether the respondents have not failed to bring their action within the time stipulated by law. They are confronted by Section 2 (a) of the Public Officers Protection Act, Cap p14, laws of the Federation, 2014, it states:-
“Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority or in respect of any alleged right or default in the execution of any such act, law, duty7 or authority, the following provision shall have effect.
a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months, next after the act neglect or default, complained of or injury within three month next after ceasing thereof.
It is the contention of the appellant that the Respondents suit is statute barred by virtue of Section 2(a) of the foregoing law.
The court below in its judgment at pages 204 – 205 of the record stated that the simplest interpretation that anybody can give to the action of the defendant/respondent in relation to this section is that the action is a continuous one and has not ceased. This is so because since the restoration of constitutional democracy in the country in 1999 and elections into various constituencies is a continuous process. The act of suppressing Isoko North State Constituency 1 by the defendant cannot be said to have been closed or ceased but must be seen as live issue, I so hold.
With respect to the decision of the trial judge above, his opinion is entirely in contradiction with the decision of this court in INEC VS OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (Pt 1498) at 175 where the court held that-
“Continuance of injury or damage means continuance of the legal injury and not merely continuance of the
injurious effects of a legal injury. In this case, the legal
injury complained of by the respondent was the excision
of Otukpa State Constituency in l996. The act was
completed in 1996. The fact that the respondents have since
the excision not been represented in their State House of
Assembly constitutes the effect of the legal injury they allegedly
suffered by that singular act. The legal injury occurred once.
What the trial court and the Court of Appeal relied on to give
judgment in favour of the respondents was the continuance of
the injurious effect of the legal injury. In the circumstances, both
courts were wrong when they respectively held that Section 2 (a)
of the public officer’s protection Act did not apply to the respondent’s
suit”.
The issue is very well illustrated by the dictum of Dickson J.,in MICHAEL OBIEFUNA VS ALEXANDER OKOYE (1961) All NLR 357 at 360 and 362.
“Continuance of injury or damage means continuance of legal
injury, and not merely continuance of the injurious effect of a
legal injury. The continuance of the injurious effect of an
accident is not a continuance of the injury or damage within the
meaning of the public authorities protection Act 1993”.
See also on this, RAWLINGS VS GILLINGHAM (1932) 146 LT 486; FREEBORN VS LEEMING (1926) 1 KB 160 and CUREY VS METROPOLITAN BOROUGH OF BERMONDSEY (67 JP) 447.
In the case at hand, the excision of Isoko North State Constituency 1 for the elections conducted between 1999 till date was the effect of the excision by the appellant in 1999. The court having found that the constituency was excised in 1999 and, without any further affidavit evidence on record, disclosing continuous legal damage, failed to be guided by a number of judicial authorities of this court on statute of limitation thereby arriving at a perverse decision on this issue.
Similarly this court in INEC VS OGBADIBO LOCAL GOVERNMENT (supra) stated that:-
“The essence or effect of Section 2 (a) of the Public officers Protection Act is that an action against a public officer in respect of any Act done in pursuance or execution of any Act or Law or of a public duty or default of same can only be commenced within three months next after the act, neglect or default complained of except in case of continuance of damage or injury in which case, the person aggrieved must institute the action within three months next after the cessation of the damage or injury complain of. In other words, the section extinguishes the cause of action if it is commenced after three months except where there is continuance of injury or damage for which a fresh cause of action arises from time to time as often as damage or injury occurs. In this case, the respondents stated in their affidavit that the appellant excised and suppressed the Otukpa State Constituency in 1996 but they commenced their suit in 2011; that is, 15 years in excess of the three months the Act allows for commencement of proceedings. The respondents, however, did not present evidence that there was continuance of damage or injury to them. In the circumstance, the respondents’ cause of action was statute-barred”.
Paragraph 29 of the respondents affidavit in support of the originating summons discloses in plain terms that it was in 1999 the Isoko North Constituency 1 was excised and suppressed, but the respondents commenced their action on 16th May 2014, that is 15 years in excess of three months the act allows for commencement of proceedings of this nature.
The limitation law does generally either of two things; it either bars the remedy without extinguishing the right or bars the remedy and at the same time extinguishes the right. Whichever effect it has will depend on the particular statute. However, there is a general consensus that all limitation laws have the effect of closing the doors of the court against the plaintiff.
In OLAOSEBIKAN VS R. A. WILLIAMS (1996) 5 NWLR (P449) the Court of Appeal in trying to explain what amounts to continuance of damage or injury under Section 2 (a) of public officer’s protection Act stated that-
“What the University of Ibadan or any other University might
do as a result of the letters the respondents sent to them does
not amount to continuance of damage or injury of the respondent defamatory publication concerning the appellant. It is only
a concomitant effect of the action of the respondent”.
The essence or effect of the Public Officer Protection Act herein, is to extinguish the cause of action if it is commenced after the stipulated period, which is three months, subject to the exception provided for in Section 2 (a) of the Act. Thus where there has been a continuance of injury or damage, a fresh cause of action arises from time to time, as often as damage or injury is caused; see AREMO VS ADEKANYE (2004) All FWLR (Pt. 224) 2113 at 2132.
It is submitted by the respondent counsel that the lower court after examining carefully the exception in the limitation law correctly stated that there is continuance of suppression of Isoko North State Constituency 1 and that at the time of commencement of the action by the respondent it has not elapsed. This position taken by the respondent cannot be correct in view of the various facts averred in paragraph 29 of the respondent affidavit in support of the originating summons. See also INEC VS OGBADIBO LOCAL GOVERNMENT supra.
In ATUNRASE VS SUNMOLA (1985) 2 NWLR (Pt1) 105 at 120 this court giving reasons why persons with good causes of action should pursue them with reasonable diligence, stated thus:-
“In all action, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his right, or has led the opposite party responsible for or guilty of such infringement to believe that he has lived (sil) or abandoned his right”.
In the case of BOARD OF TRADE VS CAYSER IRVINE & CO. LTD (1927) A. C. 610 at 628, Lord Atkinson said:-
“The whole purpose of this limitation Act is to apply to person who have good causes of action which they could if so disposed, enforce, and to deprive them of power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them. They are this deprived of the remedy which they have omitted to use”.
This court, in the case of AJAYI VS ADEBIYI (2012) 11 NWLR (Pt. 1310) 137 p. 169 paras
B –E on the essence of statute of limitation stated as follows:
The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute, where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had passed. An action which is not brought within the prescribed period, offend the provision of the law and does not give rise to a cause of action. The yardstick to determine whether an action is statute barred are:-
a) The date when the cause of action accrued.
b) The date of commencement of the suite as indicated in the writ of summons.
c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues.
In AMADI VS INEC (2012) 4 NWLR Pt. 1345 PP 607 this court held that: –
“The conspicuous effect of a limitation law is that legal proceedings cannot be properly validly instituted after the expiration of the prescribed period. Also, the court is divested of its jurisdiction in the matter as it is no longer a live issue. It is dead in substance and in form. In the instant case, the Court of Appeal was under a statutory obligation and duty to hear and determine the appellant’s appeal before it within the time prescribed by Section 285 (7) of the 1999 Constitution as amended”.
See again on this, OSUN STATE GOVT. VS DALAMI (NIG) LTD. (2007) 9 NWLR (Pt. 1038) 66; CHIGBU VS TONIMAS (NIG) LTD (2006) 9 NWLR (Pt 984) 189; SHETTIMA VS GONI (2011) 18 NWLR (Pt. 1279) 413; P.D.P. VS C.P.C. (2011) 17 NWLR (Pt. 1277) 485.
Further in HASSAN VS ALIYU (2010) 17 NWLR, this court held that-
“where a public officer fails to act in good faith, or acts in abuse of office or maliciously, or with no semblance of legal justification, he will not be protected by the provision of Section 2 (a) of the Public officers protection Act as to three months time limit for commencement of action against him. In this case, however, the exceptions did not avail the appellant”.
See again on this LAGOS CITY COUNCIL VS OGUNBIYI (1969) 1 ALL NLR 297; CBN VS OKOJIE (2004) 10 NWLR (Pt 882) 488; NWANKWERE VS ADEWUNMI (1966) 1 SCNLR 356; OFFOBOCHE VS OGOJA L.G.A. (2001)16 NWLR (Pt. 739)458.
In the case at hand, there is nothing to show that in acting the way appellant did, it acted in bad faith, maliciously or that its act was devoid of any legal justification. It is therefore clear that with the accrual of the cause of action in 1999 and the institution of the action on the 12th May 2014 a period of more than three months from the accrual of the cause of action, the action so instituted was caught by the provisions of Section 2 (a) of the public officers protection Act and therefore incompetent.
In the light of the foregoing, I resolve this issue in favour of the appellant, and set aside the findings of the two courts below on this issue, and allow the appeal and accordingly strike out the suit for being statute barred.
Appeal allowed.
SC. 704/2015