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Jafar Sani Bello V. Abba K. Yusuf & Ors (2019) LLJR-SC

Jafar Sani Bello V. Abba K. Yusuf & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an appeal against the decision of the Court of Appeal, Kaduna Division, hereinafter referred to as the lower Court, delivered on the 15th day of March 2019, affirming the judgment of the Kano State High Court, hereinafter referred to as the trial Court, dated on the 14th January 2019, adjudging suit No: K/458/2018 commenced by the appellant statute barred. The brief facts of the case that brought about the appeal are stated below.

On the 16th day of October 2018, the appellant as plaintiff filed an originating summons contesting the participation of the 1st respondent in the 2nd respondent’s 2018 Gubernatorial primary election in Kano State witnessed by the 3rd respondent. It is appellant’s case that the 1st respondent who did not comply with Section 8(8) of the Constitution of the Peoples Democratic Party and paragraph 23(a) and (b) of the Party’s Electoral Guidelines for primary elections in his bid to rejoin the party could not have lawfully participated in the party’s Kano State Gubernatorial primary election. The appellant inter-alia sought the trial

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Court’s declaration that, having come second in the primary election, he be declared the party’s duly elected candidate at the primary election, recognized and substituted as such by the 3rd respondent as 2nd respondent’s candidate in the forthcoming Governorship Election in Kano State.

Appellant’s originating summons is supported by an affidavit and a written address.

The 1st and 2nd respondents, in addition to their counter-affidavit filed in opposing the originating summons, raised a preliminary objection challenging the jurisdiction of the trial Court on the ground that the action is statute barred. The trial Court upheld the 1st and 2nd respondents’ preliminary objection and struck out appellant’s suit.

Dissatisfied, the appellant appealed to the lower Court which dismissed the appeal and affirmed the trial Court’s decision.

It is against the concurrent decisions of the two lower Courts that the appellant filed the instant appeal.

At the hearing of the appeal, counsel to the parties on identifying their respective briefs adopted and relied on same as their arguments for and against the appeal. In the appellant’s brief settled by Dr.

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Nasiru A. Aliyu, the following two issues have been formulated as arising for the determination of the appeal:-

“(1) Whether the learned justices of the lower Court were right in holding that 4th October 2018 was the day when the cause of action of the Appellant arose despite his clear depositions in paragraph 15, 15 (a), 15(c) and 15(d) of the 2nd affidavit in support of the originating summons in his judgment.

(2) Whether the learned trial justices of the lower Court were right in disregarding the Supreme (sic) cases on computation of time in pre-election matter, which held time runs from the day of the act which day is not excluded.”

At page 5 of the 1st and 2nd respondents’ brief, the two issues distilled as arising for the determination of the appeal read thus:-

(1) Whether the learned justices of the lower Court were right when the lower Court held that the suit was statute barred having been filed in excess of the 14 days provided by Section 285 (a) of the 4th alteration to the 1999 Constitution as amended (Grounds 1,2 & 5 of the Notice of Appeal).

(2) Whether the lower Court was right in holding that in the computation of

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time in election matters, time begins to run from the date of the occurrence of the event. (Grounds 3 and 4 of the Notice of Appeal).”

The 3rd respondent did not file any brief of argument in the appeal. It urged nothing on the Court.

Arguments in respect of the two issues distilled by the appellant are proffered jointly in his brief. Paragraph 15 of the affidavit in support of the appellant’s originating summons at pages 26 27 of the record of appeal, it is submitted, shows that the appellant only became aware of 1st respondent’s non-compliance with the provisions of Section 8 (8) and Section 23 (a) and (b) of their party’s Constitution and Electoral Guidelines respectively on the 4th October 2018 when he was informed by the Peoples Democratic Party’s Secretary of Diso ward, the 1st respondent’s ward, in Kano State. The appellant, it is argued, could only sue on becoming aware of this non-compliance by the 1st respondent. By the facts the appellant relies on as averred in paragraph 15 of the supporting affidavit to his originating summons, it is contended, the logical and rational conclusion pertaining the date appellant’s cause of action

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accrued is the 4th October 2018 which the lower Court in its judgment at pages 547 and 576 ignored. Not surprisingly, it is submitted, the Court, arising from this wrongful evaluation of the facts on record, ended up affirming the perverse decision of the trial Court on the point. It is this grave erroneous finding by the lower Court, as well, that the appellant’s cause of action accrued on the date the 1st respondent was returned nominated, it is further submitted, that the appellant seeks this Court to remedy. The facts which combination gave rise to the action, learned counsel emphasizes, became evident unmistakably on the 4th of October 2018 which remains the only date the facts became actionable. Learned counsel relies on RANSOME KUTI V. AG OF THE FEDERATION (1985) 2 NWLR (PT 6) 211, HASSAN V. ALIYU & ORS (2010) LPELR 1357 (SC) and AJIBONA V. KOLAWOLE AND ANOR (1996) LPELR 299 (SC).

Further arguing the appeal, learned counsel contends that in reckoning when a cause of action arose, the day of the happening of the event that gave rise to the cause of action is excluded. The computation, learned counsel

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asserts, is therefore commenced with the next date after the event. In interpreting the provision of Section 285 (9) of the Constitution as altered, therefore, it is contended, the lower Court wrongly included the date on which the primary election took place. The Court, it is further contended, wrongly relies on the decisions in TUKUR IBRAHIM V. ISHAG UMAR & ORS (2013) LPELR 22805 (CA) and ADEOGUN V. FASHOGBON (2008) 17 NWLR (PT 1115) 149 at 181 which are not decisions on computation of time for the purpose of determining whether or not the cause of action in a pre election matter is statute barred. In the circumstance, learned appellant’s counsel concludes, the lower Court’s judgment that fails to ascribe to the clear and unambiguous words that make up Section 285(9) of the 1999 Constitution their literal meaning must accordingly be adjudged perverse and interfered with. Learned counsel relies on OBUSEZ & ANOR V. OBUSEZ & ANOR (2007) LPELR 2197 (SC) and urges the resolution of the two issues in appellant’s favour as well as allowing the appeal.

See also  Audu Aruna & Anor V. The State (1990) LLJR-SC

Responding, learned counsel contends that the 1st and 2nd reliefs

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sought by the appellant constitute his principal claim which challenges 1st respondent’s participation in the primaries of the 2nd respondent. Appellant’s case, it is submitted, is that since the 1st respondent is not a bonafide member of the P.D.P, the 2nd respondent, he is neither qualified to participate in the primary election nor is the 2nd respondent competent to return him as the winner of the said primary election. The crucial issue to determine, it is further submitted, is as to when the primary election took place. The appellant himself, it is argued, averred in paragraph 12 of the 2nd affidavit in support of his originating summons at page 26 of the record that the primary election the 1st respondent and the appellant participated in took place on the 2nd of October 2018. Since the appellant is complaining about 1st respondent’s improper participation in the party’s primary election, having not properly rejoined the party, a computation of time from the date of their participation in the primary election and the date he filed his action to seek redress as envisaged by Section 285 (9) of the 1999 Constitution will reveal the status of appellant’s

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action. The trial Court and the lower Court at pages 463 and 568 respectively, learned respondents’ counsel submits, arrived at the unassailable conclusion that appellant’s action is statute-barred. By Section 285 (9) of the 1999 Constitution, appellant’s suit, it is submitted, has become unenforceable. Appellant’s insistence that the 4th October 2018 he avers in paragraph 15 of his supporting affidavit be the date to reckon in computing whether his action is rendered unenforceable by the operation of Section 285 (9) of the Constitution as altered, it is contended, is not only indolent but renders the law uncertain. The lower Court’s finding at page 569 of the record that 4th October 2018 the date the appellant alleges he became aware that 1st respondent had not rejoined the 2nd respondent is incapable of constituting appellant’s right of action, it is submitted, sets the law straight. In any event, it is further argued, Ahmed Dalhat Sani the Peoples Democratic Party Secretary, the appellant contends informed him 1st respondent’s non-compliance with the statutory requirements in respect of persons rejoining the party, has in paragraph 10 of the further

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counter-affidavit he filed in opposition to appellant’s originating summons, disowned the disclosure ascribed to him.

Concluding, learned counsel submits that all the cases relied upon by the learned appellant’s counsel do not avail him since they are not on the Court’s interpretation of Section 285 (9) of the 1999 Constitution as altered or similar legislation.

Instead, the decision in GARBA V. ADUA (2011) 12 NWLR (PART 1263) 1 at 17 18 is the most apposite. There in, learned counsel submits, it is held that the very date on which the event that gives a claimant his right to sue occurred is included in the computation as to whether or not the action is statute barred. On the whole learned counsel urges that the issues be resolved against the appellant and the appeal dismissed.

My lords, it appears pertinent to ponder at this stage what questions the appeal raises. These include , inter-alia, what a cause of action is, how it is determined, when it arises and when does time begin to run against a plaintiff for the purpose of limitation

The phrase “cause of action” has been defined by this Court, see FRED EGBE V. HON. JUSTICE J. A. ADEFARASIN

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(1987) LPELR 1032 (SC), as the fact or facts which establish or give rise to a right of action. It is the factual situation that gives an aggrieved person the right to judicial relief. Cause of action is constituted by the entire set of circumstances which give rise to an enforceable claim. See ALHAJI WADA KUSADA V. SOKOTO NATIVE AUTHORITY (1968) LPELR 25424. (SC) and CHIDI B. NWORIKA V. MRS ANN ONONEZE-MADU & ORS (2019) LPELR 46521 (SC).

It is settled law that the totality of the plaintiff’s claim determines his cause of action. In the case at hand where appellant’s action is pursuant to an originating summons, his reliefs and the averments in his supporting affidavit delineates his cause of action. See AG FEDERATION V. AG ABIA STATE & ORS (2001) LPELR 24862 (SC) andOWURU & ANOR V. ADIGWU & ANOR (2017) LPELR 42763 (SC).

Again, it is trite that a cause of action arises on the date or from the time the breach of duty occurs which warrants the person adversely affected by the breach or the injury therefrom to sue in a law Court to assert or protect his legal right that has

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been violated. Thus, a cause of action enures to the plaintiff the very moment a wrong is done to him by another which fatual situation entitles the former to seek relief in the law Court by way of enforcement. See AG ADAMAWA v. ATTORNEY GENERAL OF THE FEDERATION (2014) LPELR 23221 (SC) and ALHAJI HANAFI ZUBAIR V. ALHAJI ABDULLAHI ATANDA KOLAWOLE (2019) LPELR 46928 (SC).

This Court has also held in decisions too numerous to call that time begins to run against a plaintiff, for the purpose of limitation, from the date the cause of action accrues which, generally, is the date on which the incident or event giving rise to the cause of action occurs. See JOHN EBOIGBE V. NNPC (1994) LPELR 992 (SC) and ACTION CONGRESS OF NIGERIA & ANOR V. INEC (2013) LPELR 20300 (SC).

See also  Nathaniel Oyekan & Ors. V. Amos Akinrinwa & Ors. (1996) LLJR-SC

The issue distilled by an appellant supposedly circumscribes his complaint(s) by virtue of which his appeal succeeds or fails. Like pleadings, he should ordinarily be bound by these issues. Appellant’s two issues in this appeal question the lower Court’s decision as to when time began to run against him given the limitation prescribed under Section 285(9) of the 1999 Constitution as altered.

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The justice of the instant matter dictates that appellant’s submissions which are manifestly outside the precinct of and contrary to his two issues be accommodated in our resolution of his two issues. Appellants inability to appreciate the relationship between his “cause of action” and his “right to sue” creates particular difficulty. At paragraph 2.8 of the appellant brief learned counsel surmises in part thus:-

“We therefore, submit that the factual situation that gave rise to this suit accrued and became actionable with an accrued cause with the reception of the information of the failure of the 1st Respondent to reapply to the 2nd Respondent in accordance with the Section 8(8) of the PDP Constitution. We submit that the right to sue is entirely different from a cause of action, therefore at the time of the nomination of the 1st respondent on the 2nd October 2018 the Appellant had acquired right to sue, but not cause of action as he had no issue with the conduct of the primary election. We submit that there is clear distinction between a cause of action and a right of action to enforce the cause of action

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or the right of judicial relief in the plaintiff. HASSAN V. ALIYU & ORS (2010) LPELR 1357 (SC). Therefore, with the coming into light, the concealment of the facts combination of fact which gave rise to this action then, the Appellant’s cause of action accrued on the 4th October 2018 not the 2nd October 2018 as held by both the trial and the lower Court.” (Underlining mine for emphasis).

Appellant’s position in the foregoing is preposterous It explains his failure to appreciate the futility inherent in the appeal! It must be stressed that it is his “cause of action” that creates his “right to sue” and that the two phrases are interchangeable. For the purpose of the limitation put in place by Section 285 (9) of the 1999 Constitution as altered, therefore, it is permissible to talk in terms of when time begins to run against appellant’s “cause of action” or his “right to sue”. If caught up by the prescribed limitation his “cause of action” completely dissipates in the same way his right to sue becomes unenforceable.

Section 285 (9) of the 4th Alteration to the 1999 Constitution (as amended) which provides for the limitation

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to appellant’s cause of action reads:-

“(9) 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 occurrence of the event, decision or action complained of in the suit.”

In upholding the preliminary objection, the trial Court at pages 463 464 the record of appeal held thus:-

“It is apparent from reliefs 1 and 2 of the applicants originating summons that his main complaint is the participation of the 1st Defendant/Respondent in the conduct of the primary election of the 2nd Respondent which was held on the 1st and 2nd of October, 18 that is in issue in this suit.

The 2nd day of October, 2018 was the day the event was concluded and results announced. The results of the Primary Election having being (sic)

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announced on the 2nd day of October, 18 time begins to run for that day and the said 2nd of October, 18 shall not be excluded.

From the 2nd of October, 18 to the 16th day of October, 18 is 15 days…

The originating summons in this suit having being (sic) filed 15 days after the conclusion of the Gubernatorial Primaries of the 2nd Respondent is caught up by the provision of Section 285 (9) of the 4th Alteration of the Constitution of the Federal Republic of Nigeria 1999 (as amended) hence is statute barred.”

In affirming the foregoing, the lower Court at pages 568 – 569 of the record enthused as follows:-

“The date of the occurrence of the event is none other than the date the cause of action arose in this case on appeal… the Court below in its judgment rightly in my view held or found that the decision taken on the 2/10/18 to nominate, select or elect the 1st respondent as the candidate of the PDP for Gubernatorial elections in Kano State on the 2nd October, 2018 gave rise to the cause of action and time begins to run from that date in the computation of the 14 days period allowed under Section 285 (9) of the Constitution as altered.

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I am in complete agreement with this finding of the trial Court… Certainly, the 4th of October, 2018, the date the appellant “became aware” that the first respondent had not “rejoined” the party cannot in law constitute a cause of action or give the appellant the right to initiate action for judicial relief.”

The Court at page 570 of the record concluded thus:-

“Therefore, by the arithmetical calculation of a period of 14 days from the 2nd October 2018 the 14 days lapsed on the 15th days that is to say, one day outside the 14 days limited by the Constitution hence the suit commenced at the trial Court was caught by that statute of limitation. It is statute barred. The trial Court indeed came to the right conclusion when it struck out the suit.”

See also  Jallco Limited & Anor V. Owoniboys Technical Services Limited (1995) LLJR-SC

Learned appellant’s counsel ascribes perversity to the lower Court’s foregoing findings on two grounds.

Firstly, he contends that because the appellant was not aware of 1st respondent’s non compliance with 2nd respondent’s Constitution and Electoral Guidelines in rejoining the party, the two lower Courts are wrong in their concurrent findings that time begins to run

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against the appellant, for the purpose of the limitation envisaged by Section 285 (9) of 4th Alteration to the 1999 Constitution as amended, from the 2nd October 2018 when 2nd respondent’s primary election took place.

Secondly, the findings are also wrong because they stand in conflict with the binding decisions of the Supreme Court on the point all of which exclude the date the plaintiff’s cause of action arises in their determination of when time begins to run against him for limitation purposes.

I entirely agree with learned counsel to the 1st and 2nd respondents that the lower Court’s findings learned appellant’s counsel contends are perverse remain unassailable. Again, having evolved in complete obedience to earlier decisions of the apex Court, learned counsel to the 1st and 2nd respondents is correct to insist that the findings cannot be interfered with.

Section 285 (9) of the 1999 Constitution as altered which application to appellant’s suit by the two lower Courts renders the cause of action therein unenforceable is clear and unambiguous. In ascribing to the words which make up the section their literal meaning, the two Courts remain

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within the bounds set by this Court in that regard. See RABIU V. STATE (1980) 8 11 SC 130 and AG FEDERATION V. AG LAGOS STATE (2013) LPELR 20974 (SC). The words “event, decision or action”, the two Courts are right, refer to a plaintiff’s cause of action on the basis of which his right to sue enures. Appellant’s cause of action is the alleged participation of the 1st respondent, while in breach of Section 8 (8) of 2nd respondent’s Constitution and paragraph 23 (a) and (b) of its Electoral Guidelines for primary elections, in the party’s Kano State Gubernatorial primary election that held on 2nd October 2018.

Learned appellant’s counsel insists that the lower Court is wrong to have found appellant’s action statute barred by reference to 2nd October 2018 instead of the 4th of October 2018 that the appellant became aware of the 1st respondent’s non-compliance with the party’s Constitution and Electoral Guidelines.

I am unable to agree with learned counsel that appellant’s cause of action begins to run, by virtue of the limitation prescribed under Section 285 (9) of the 1999 Constitution as altered, from the time he becomes aware

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of 1st respondent’s non-compliance which, on the latter’s participation in the primary election, creates appellant’s right to sue. The clear and unambiguous section neither makes knowledge on the part of the appellant a pre-Condition to the filing of his action nor excludes the date his cause of action accrues in the determination of when time begins to run against him. By the section, appellant’s knowledge of 1st respondent’s non-compliance with 2nd respondent’s Constitution and Electoral Guidelines is immaterial. To hold that time begins to run against the appellant only on his becoming aware of 1st respondent’s non-compliance and further exclude the date appellant’s cause of action accrues, in determining when limitation begins to run against him, is to read into the section what it does not contain. No Court has the jurisdiction of doing so. See DANGANA & ANOR V. USMAN & ORS (2012) LPELR 25012 (SC) and GANA V. SDP & ORS (2019) LPELR 47153 (SC). By the section, the limitation period is 14 days and since neither knowledge nor the date of the accrual of the cause of action is made a precondition for the determination of the period, the

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lower Court in excluding appellant’s knowledge of 1st respondent’s non-compliance and taking into congnisance the date his cause of action arises in its computation of the limitation period is beyond reproach.

In AJIBONA V. KOLAWOLE (1996) 10 NWLR (PT 476) 22 at 36 this Court per Ogwuegbu JSC held:

“The Limitation Law and all laws of this description ought to receive beneficial construction. They should be construed liberally but not in such a way as to read into them words not intended by the law makers as the majority decision of the Court below portrayed. All limitation laws have for their object the prevention of the rearing up of claims that are stale. To contend that the defendant must prove plaintiff’s knowledge of such adverse possession for time to start to run, or the defendant’s presence on the land is to import a strange condition into the Limitation Law. See Sosan & Ors v. Ademuyiwa & Ors. (1986) 3 NWLR (Pt. 27) 241 at 256.”

Kutigi JSC (as he then was and now of blessed memory) in his contribution opined at page 37 of the report thus:-

“I also agree that the defendant having lived in

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his house on the land in dispute for over twelve years before the suit was filed, the limitation period under the Limitation Law would in addition run in his favour whether or not the plaintiff was aware of such adverse possession by the defendant.”

See alsoALHAJI A. W. ODEKILEKUN V. MRS. COMFORT O. HASSAN & ANOR (1997) 12 NWLR (PT 531) 56.

The lower Court in affirming the trial Court’s decision has kept faith with the binding decisions of this Court. Appellant’s two issues, it follows, fail and are resolved against him. His unmeritorious appeal is dismissed at a cost of N500,000.00k in favour of the 1st & 2nd respondents and the concurrent decisions of the lower Courts are hereby further affirmed.


SC.363/2019

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