Karshi & Ors V. Gwagwa & Ors (2022) LLJR-SC

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Karshi & Ors V. Gwagwa & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.S.C. 

On 9-6-2021, the 1st respondent herein as plaintiff commenced Suit No. CV/1052/2021 by way of Originating Summons against the appellants herein and 2nd to 12th respondents herein as defendants. The questions for determination in the summons are as follows:-

  1. WHETHER by virtue of Section 87 of the Electoral Act, 2010 (as amended) and having regard to provisions of Articles 19, 20 and 21 of the Constitution of the All Progressives Congress and the APC Guidelines for nomination of candidates for FCT Area Council and Wards Elections it is lawful for the 18th Defendant acting for and on behalf of the 6th-17th defendants and the 2nd defendant to recognize and forward the name of any person other than the plaintiff as its candidate for the forthcoming Abuja Municipal Area Council Elections.

​2. WHETHER by virtue of the provisions of Section 87 of the Electoral Act, 2010 (as amended) and having regard to the provisions of Article 20 of the Constitution of the All Progressives Congress and the Guidelines for nomination of candidates for FCT Area Council and Wards Elections it is lawful for the 18th defendant acting for and on behalf of the 6th-17th defendants and the 2nd defendant to change the result of the primary election conducted by the FCT Chapter of the 2nd defendant for the Local Government Council Chairmanship Primary Elections in Abuja Municipal Area Council on the 23rd of April, 2021 in which the plaintiff emerged as the winner and was so declared by the FCT Chapter of the 2nd defendant and forward the name of the 1st defendant who lost the primary election.

  1. WHETHER in view of the provisions of Section 87 of the Electoral Act, 2010 (as amended), the 18th defendant acting for and on behalf of the 6th-17th defendants and the 2nd defendant are not under the obligation to forward the name of the plaintiff as its candidate to the 3rd defendant for the forthcoming Abuja Municipal Area Council General Elections and to be so recognized by the 3rd defendant.
  2. WHETHER having duly participated and won the Primary Election of All Progressives Congress (APC) for the Abuja Municipal Council (AMAC) in accordance with the Constitution and the Guidelines for the Nomination of Candidates for the forthcoming FCT Area Council and Ward Elections of 6th-18th defendants and the 2nd defendant are not under the obligation to forward the name of the plaintiff to the 3rd defendant?
  3. WHETHER by virtue of the 2nd defendant’s Summary Result Sheet of the FCT Chapter of the 2nd defendant for the Local Government Council Chairmanship Primary Election, Abuja Municipal Council dated the 23rd of April, 2021, the 4th defendant’s Report on the Abuja Municipal Area Council (AMAC) Chairmanship Primary Election in AMAC dated the 28th of April, 2021 and the 3rd defendant’s Report Arising from the All Progressives Congress Primary Election/Appeals on FCT Area Councils Elections dated the 27th of May, 2021 the name of the 1st defendant or any other person apart from the plaintiff can be forwarded to the 3rd defendant as the winner of the 2nd defendant’s primary elections held on the 23rd of April, 2021.
  4. WHETHER by virtue of the provisions of the 1999 Constitution, the Electoral Act, the Constitution of the APC and the Guidelines for the Nomination of Candidate for the FCT Area Council and Ward Elections and the 3rd defendant’s letter dated the 27th of April, 2021 written to the 2nd defendant on the need to uphold internal democracy and due diligence in processing list of candidates for Elections, the 6th-18th defendants and the 2nd defendant are not duty bound and obliged to exercise due diligence in processing its list of candidates for election?

The reliefs claimed for in the summons were as follows:

  1. A DECLARATION that by virtue of Section 87 of the Electoral Act, 2010 (as amended) and having regard to provisions of Articles 19, 20 and 21 of the Constitution of the All Progressives Congress and the APC Guidelines for the nomination of candidates for FCT Area Council and Wards Elections it is unlawful for the 18th defendant action for and on behalf of the 6th-17th defendants and the 2nd defendant to recognize and forward the name of any person other than the plaintiff as its candidate for the forthcoming Abuja Municipal Area Council General Elections.
  2. A DECLARATION that it is unlawful for the 2nd defendant and the 6th-18th defendants to recognize and forward the name of the 1st defendant or any candidate other than the plaintiff to the 3rd defendant as its candidate for the Abuja Municipal Area Council General Elections.
  3. A DECLARATION that it is unlawful for the 2nd defendant and 6th-18th defendants to change the result of the Primary Election conducted for Abuja Municipal Area Council by submitting the name of the 1st defendant to the 3rd defendant in which the plaintiff emerged the winner and was so declared by the 3rd defendant.
  4. A DECLARATION that the name of the 1st defendant submitted to the 3rd defendant by the 2nd defendant and the 6th-18th defendant or any other person not being the name of the plaintiff for the Abuja Municipal Area Council General Elections is unlawful, null and void.
  5. A DECLARATION that by virtue of the All Progressives Congress Summary Result Sheet for the Local Government Council Chairmanship Primary election, Abuja Municipal Area Council dated the 23rd of April, 2021, the 4th defendant’s Report on the Abuja Municipal Area Council (AMAC) Chairmanship Primary Election dated the 27th of April, 2021, the 5th defendant’s Report on the conduct of All Progressives Congress Primary Election in AMAC dated the 28th of April, 2021 and the 2nd defendant’s Report arising from the All Progressives Congress Primary Election/Appeals on FCT Area Councils Elections dated the 27th of May, 2021 only the plaintiff’s name can be forwarded to the 3rd defendant as the winner of the 2nd defendant’s primary elections held on the 23rd of April, 2021.
  6. A DECLARATION that by virtue of the provisions of the 1999 Constitution, the Electoral Act, the Constitution of the APC and the Guidelines for the nomination of Candidate for the FCT Area Council and Ward Elections and the 3rd defendant’s letter dated the 27th of April, 2021 written to the 2nd defendant on the need to uphold internal democracy and due diligence in processing list of candidates for elections, the 2nd defendant is duty bound and obliged to exercise due diligence in processing its list of candidates for Abuja Municipal Area Council Elections.
  7. AN ORDER setting aside the 2nd and 6th-18th defendants’ (Care Taker/ Extraordinary Convention Planning Committee) letter dated 25th May, 2021, reference No. APC/NHDQ/INEC/19/021/014, SIGNED THE 6TH AND 18TH Defendants addressed to the 3rd defendant’s Chairman forwarding the name of the 1st defendant as the candidate for the General Election to be conducted by the 3rd defendant in January, 2023 or any other date fixed by the 3rd defendant for the office of the Chairman, AMAC, Abuja.
  8. A MANDATORY ORDER directing the 3rd defendant, its Chairman, officers or staff to recognize and accept the name of the plaintiff as the rightful and lawful candidate of the 2nd defendant for the General Election to be conducted in January, 2023 or any other date fixed by the 3rd defendant for the office of the Chairman of the Abuja Municipal Area Council, Abuja.
  9. AN ORDER of mandatory injunction directing the 2nd defendant to submit the name of the plaintiff to the 3rd as its candidate to the Abuja Municipal Area Council Elections.
  10. AN ORDER of mandatory injunction directing the 3rd defendant to accept and treat the plaintiff as the candidate of the 2nd defendant for the forthcoming Abuja Municipal Area Council Elections.
  11. AN ORDER of perpetual injunction restraining the 1st defendant from parading himself as the candidate of the 2nd defendant for the forthcoming Abuja Municipal Area Council Elections.
  12. AND for such further orders (s) as this Court may deem appropriate to make in the circumstances of this case.

The summons was supported by affidavits. The defendants filed counter-affidavits in opposition to the summons as well as preliminary objection to the jurisdiction of the trial Court to entertain the suit.

The objection and the merit of the suit were considered together. Following the adoption of written addresses by all parties, the trial Court in its judgment of 27-9-2021 upheld the preliminary objection that the suit was statute barred and that therefore it lacked the jurisdiction to entertain and determine same. It refrained from determining the merit of the suit as it saw no need for such a consideration having held that the trial Court lacked the jurisdiction to determine the suit as it was statute barred.

Dissatisfied with the said judgment of the trial Court, the plaintiff on 7-10-2021 filed a notice of appeal against the said judgment. The 12th to 18th defendants filed a notice of cross-appeal against a part of the judgment.

​The Court of Appeal allowed the appeal of the 1st respondent herein, held that the suit was not statute barred and that the trial Court had the jurisdiction to determine it, set aside the judgment of the trial Court, invoked its power under Section 15 of the Court of Appeal Act 2004 to determine the merit of the suit and granted reliefs 1 to 6 claimed for in the Originating Summons and made orders it described as consequential orders. It struck out the cross-appeal for having been rendered academic.

Dissatisfied with the judgment of the Court of Appeal, the appellants herein commenced this appeal No. SC.1166/2021 by filing a notice of appeal on 15-12-2021. The 5th respondent herein filed a notice of cross-appeal against the decision of the Court of Appeal on 16-12-2021 that the cross-appeal is academic.

The parties have filed, exchanged and adopted their respective briefs in the appeal and cross-appeal as follows- appellants’ brief, 1st respondent’s brief, 2nd respondent’s brief, 6th to 12th respondents’ brief, appellants’ reply brief to the 1st respondent’s brief, cross appellant’s brief, 1st cross respondent’s brief and cross appellant’s reply to 1st cross-respondent’s brief.

​The 1st cross-respondent also filed a motion on notice praying for the striking out of the cross-appeal. The motion is argued in the 1st cross respondent’s brief. The cross-appellant replied to the arguments in his reply brief.

I will determine the main appeal first and then determine the cross appeal.

​The appellants’ brief raised the following issues for determination-

“1. Whether the lower Court was right when it held that the cause of action arose on 28th May, 2021 and set aside the decision of the trial Court. (Distilled from grounds 1 and 2).

  1. Whether the lower Court was right when it invoked Section 15 of the Court of Appeal Act and assumed jurisdiction to determine the Originating Summons of the 1st respondent on the merit. (Distilled from ground 3).
  2. Whether the lower Court was not wrong when it considered the evidence led by the 1st respondent formed an opinion on same and failed to consider the evidence led by the appellants. (Distilled from ground 4).
  3. Whether the lower Court was right when it raised the issue of power of appeal committee to hear appeal from the conduct of primary election suo motu and resolved same against the appellants without hearing them. (Distilled from ground 5).
  4. Whether the lower Court was right when it failed to consider the serious allegations of alteration of documents and forgeries in the Exhibits filed by the 1st respondent.
  5. Whether the lower Court was right when it granted the reliefs sought by the 1st respondent in his Originating Summons. (Distilled from grounds 7 and 8).”

The 1st respondent’s brief adopted and argued the issues raised for determination in the appellants’ brief.

The 2nd respondent’s brief raised one issue for determination as follows-“Whether the lower Court was right when it held that the cause of action arose on 28-5-2021”

I have chosen to determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

Let me start with issue No. 1 that asks- “Whether the lower Court was right when it held that the cause of action arose on 28th May, 2021 and set aside the decision of the trial Court. ”

I have carefully read and considered the arguments in the respective briefs on this issue.

​The parties herein disagree on when the cause of action in this case accrued. The 1st respondent contend that it occurred on 6-6-2021, when he became aware that the 2nd appellant no longer regarded him as its candidate for the on-coming general election of Chairman Abuja Municipal Area Council and rather regarded the 1st appellant as its said candidate and that on that date the 2nd respondent published the 2nd appellant’s letter dated 25-5-2021 forwarding the 1st appellant’s name to the 2nd respondent herein, which letter the 2nd respondent acknowledged receipt of on 28-5-2021. The defendants (appellants and 6th to 12th respondents herein) contend that the cause of action occurred on 25-5-2021 when the 2nd appellant wrote to the 2nd respondent the letter dated 25-5-2021 forwarding the 1st appellant’s name to the 2nd respondent herein as its candidate for the election. It has always been the contention of the plaintiff (the 1st respondent herein) right from the trial Court that the cause of action accrued when the 2nd respondent that had on 28-5-2021 received the 2nd appellant’s letter dated 25-5-2021 presenting the 1st appellant as its candidate in the on-coming Abuja Municipal Council Elections, published it on the 6-6-2021 and he thereby became aware for the first time that he had been replaced as the said candidate of the 2nd appellant and that therefore the suit filed on 9-6-2021 was filed within 14 days and was not statute barred. The appellants herein have always contended that the cause of action occurred on 25-5-2021, when the 2nd appellant wrote the letter to the 2nd respondent presenting the 1st appellant’s name as its candidate as it is that letter that caused the plaintiff (1st respondent) to file the suit and that therefore the suit was filed on 9-6-2021 outside 14 days from 25-5-2021 and was statute barred.

Whenever a plea of limitation of action is made and the concomitant issue of when the cause of action accrued arises, the question that naturally follows is what the Court should look at or rely on to determine it. The trial Court directed itself on the general principle that to determine if an action is statute barred, it is the originating process that the Court should look at to find out the date the wrong that caused the suit occurred and the date the suit was filed. However, it still went ahead to consider affidavits of both sides and the accompanying exhibits outside the originating summons to determine that question in this suit. ​The Court of Appeal in its judgment stated the approach it adopted in resolving the issue thusly- “Thus, in determining when a cause of action arose, the Court must examine the originating process, the Affidavit evidence, relevant documentary evidence and the evidence on record to enable the Court know when the wrong occurred and when the suit was filed. In the case of WALI VS APC, (2020) 16 NWLR (pt 1749) 82 at 99 paragraphs B-E, the Court held thus:-

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“Now on whether the plaintiff’s cause of action was statute barred by dint of Section 285(9) of CFRN, (as amended) I accept the principle of law that it is not always that for purposes of determining the date the right to the cause of action accrued to the plaintiff, it is only from the pleading or evidence of the plaintiff that the fact is deducible. The cogent facts pleaded by the defence or averred in the counter-affidavit, particularly when the Defendant raises limitation as a special defence are also material and relevant for consideration. When the Court as Mr. Fagbemi of the cross-appellant’s Counsel submitted, is faced with the question whether the Court has jurisdiction, in a situation like the instant; the Court will consider all the available facts that are cogent and relevant to the issue”.

Also the Apex Court of the land, in the case of APC VS LERE, (2020) 1 NWLR (pt 1705) page 254, on what the Court considers in determining whether an action is statute barred held:-

“To determine whether an action is statute-barred, the Court examines the originating process, statement of claim, together with the evidence on record where that has taken place, to know when the wrong in question occurred and compared it with the dates the originating processes were filed in Court”.

Now I have gone through all the processes filed by the appellant at the lower Court especially the originating summons, the affidavit in support of originating summons, the various affidavits of the appellant in reaction to the affidavit of the respondents challenging jurisdiction of the suit of the appellant at the lower Court and the evidence adduced in support of the originating summons. In particular, I have perused paragraph 9 and 10 of the counter-affidavit of the appellant in opposition to the 1st, 2nd, 6th-10th defendants’ Motion on Notice dated the 30th June, 2021 and paragraph 10 of the counter affidavit to the 12th-18th defendants’ and I have closely looked at exhibits A and B attached thereto;

I have also perused the exhibits i.e. A and B at pages 810-820 as published by the 3rd respondent; and Exhibit A is the letter of the 2nd respondent dated 25th May, 2021. A close look at exhibit A, the letter was received by the 3rd respondent on 28th May, 2021. Exhibit A, a certified true copy is the letter referred to by the appellant at paragraphs 20 and 22 of his affidavit supporting his originating summons and exhibits B is the particulars of the 1st respondent published alongside with exhibit A for the information of the general public especially in the FCT, Abuja.

There is no ground of this appeal complaining against the Court of Appeal’s reliance on all evidence on record before the Court in determining when the cause of action accrued and if the suit is statute barred. By not appealing against it, the parties in the appeal before it accept it as correct, binding and conclusive. See Iyoho V Effiong (2007).

​The approach of the Court of Appeal is justified by our decision in APC VS LERE that is consistent with our decisions in Egbe v Adefarasin, Nwankere V Adewunmi (1967) NMLR 45 at 48, and Egbe V Alhaji.

Where the objection that the suit is statute barred is considered and determined after the conclusion of evidence by both sides, then the Court cannot ignore the evidence before it and pretend it does not exist and determine the objection only on the basis of the originating processes. At that stage, all the processes and evidence before the Court must be considered, especially where the objection is determined as part of or along with the final judgment on the merit of the dispute in the case, as has happened in this case.

​This approach pursues the substantial justice of the matter and reduces the incidence of unscrupulous litigants, who, knowing very well that their claim is already statute barred, coin or phrase their case in such a manner as to hide or misrepresent the fact that it is statute barred to exploit the principle that only the originating process should be considered in determining the issue of when the cause of action accrued and abuse the process of Court sending it on a futile trial of a stale cause that it lacks jurisdiction to try.

The practice that is now becoming prevalent in pre-election matters, following the Fourth Alteration of the 1999 Constitution, is that prospective plaintiffs upon realizing that they have not been able to bring a pre-election case within 14 days as required by Section 285(9) of the 1999 Constitution as amended, resort to framing their case in such a manner as to give the impression that their complain is not about the outcome of the primary elections, alleging that they won the elections, that their complain is against the submission of the name of a person who Independent National Electoral Commission as the candidate of the political party for the relevant election. By so doing, the cause of action would be said to have occurred not on the date of the primary election but on the subsequent date when he became aware that some other person’s name has been submitted by his political party as the candidate of his party instead of his own name as the winner of the election. Experience has shown that such cases as framed misrepresent the issue in dispute and the date the true cause of action accrued. On the general principle that it is the originating process that must be considered to determine if an action is statute-barred, the Courts restrain themselves from considering the processes filed by the defendant in response to the originating process, even when the objection was determined by the trial Court in its final judgment after conclusion of evidence. The Courts ignore other evidence in the case that disclose the actual cause of action and pretend that it does not exist. This in my view, violates the fundamental principle of fair hearing that requires the Court to consider all the evidence before it in its final judgment or to consider all the evidence on a point in determining that point.

What this Court should consider here is whether decision of the Court of Appeal that the cause of action occurred on the 28th of May 2021, when the 2nd respondent received the 2nd appellant’s letter dated 25-5-2021 presenting the 1st appellant as its candidate for the election is supported by the originating processes and all the evidence in the record of the Court.

Before I proceed to determine this question, let me restate the undisputed facts that gave rise to this dispute.

​On 23-4-2021, the 2nd respondent held its primary election to nominate its candidate for the on-coming general election of Chairman Abuja Municipal Area Council.

The result declared after close of voting that day reads thusly-

“The names and scores of each candidate are as follows:

  1. HON. SULEIMAN ALHASSAN GWAGWA – 110 VOTES
  2. HON. MURTALA USAMAN KARSHI – 106 VOTES
  3. HON. YAMAWU TANKO ISHAKU – 73 VOTES
  4. HON. HASSAN MUSA MOHAMMED – 43 VOTES
  5. HON. YUNUSA SARKI – 2 VOTES
  6. HON. OKPARA MAXWELL – 2 VOTES
  7. HON. BALA SHAGARI MOHAMMED – NIL

TOTAL NUMBER OF VOTING – 345

INVALID VOTES – 9

THE TOTAL NUMBER OF VALID VOTES – 336″

The 1st respondent was declared the winner of the election and elected as the 2nd respondent’s candidate for the said election.

​The 1st appellant was aggrieved with the declared result and appealed against it to the Appeal Committee set up by the National Executive Caretaker/Extraordinary Committee of the 2nd appellant contending that 7 out of the 9 votes declared as invalid were cast for him and that those votes were wrongfully excluded and that with those votes he scored 113 votes and not 106 votes and therefore had the majority of the votes cast and should be declared winner of the primary election and the said candidate of the 2nd appellant.

The said Appeal Committee submitted its report to the National Executive Caretaker/Extraordinary Convention Planning Committee of the 2nd appellant on the 24th April, 2021. The 2nd appellant wrote a letter dated 25-5-2021 to the 2nd respondent forwarding the name of the 1st appellant as its candidate for the said general election of Chairman Abuja Municipal Area Council. The 2nd respondent received the said letter on 28-5-2021.

The evidence adduced by both sides do not agree on the membership of the said Appeal Committee, the presence of the 1st respondent during the appeal hearing, the verdict of the Appeal Committee, the date the 1st respondent was replaced with the 1st appellant as 2nd appellant’s candidate and the date the 1st respondent became aware of his said replacement.

​Let me now consider the evidence the Court of Appeal relied on to reach the decision that the cause of action accrued on 28-5-2021 and that therefore the suit filed on 9-6-2021 was not statute barred.

The portion of the Court of Appeal judgment that determined this issue reads thusly-

“Now I have gone through all the processes filed by the appellant at the lower Court especially the originating summons, the affidavit in support of originating summons, the various affidavits of the appellant in reaction to the affidavit of the respondents challenging jurisdiction of the suit of the appellant at the lower Court and the evidence adduced in support of the originating summons. In particular, I have perused paragraphs 9 and 10 of the counter-affidavit of the appellant in opposition to the 1st, 2nd, 6th-10th defendants’ Motion on Notice dated the 30th June, 2021 and paragraph 10 of the counter-affidavit to the 12th-18th defendants and I have closely looked at exhibits A and B attached thereto;

I have also perused the exhibits i.e. A and B at pages 810 – 820 as published by the 3rd respondent; and Exhibit A is the letter of the 2nd respondent dated 25th May, 2021. A close look at exhibit A, the letter was received by the 3rd respondent on 28th May, 2021. Exhibit A, a certified true copy is the letter referred to by the appellant at paragraphs 20 and 22 of his affidavit supporting his originating summons and exhibits B is the particulars of the 1st respondent published alongside with exhibit A for the information of the general public especially in the FCT, Abuja.

Now the appellant and the respondents especially the 1st, 3rd and 4th sets of respondents are of the view that the plaintiff/appellant’s cause of action arose on the 25th May, 2021, i.e. the date on the letter of the 2nd respondent to the 3rd respondent. The appellant by his affidavit evidence is of the view that the cause of action arose when he became aware of the publication of the names for the chairmanship of Abuja Municipal Area Council (AMAC) by the 3rd respondent on 6th June, 2021 or on the 28th May, 2021 when the 3rd respondent received the 2nd respondent’s letter. The 3rd respondent, INEC by its brief of Argument at paragraph 2.3, 4.2-4.7 submitted to the effect that the letter of the 2nd respondent dated 25th May, 2021 was received by the 3rd respondent on 28th May, 2021. And further submitted that cause of action arose in this suit on the date of the occurrence of the event, decision or action complained of in this suit which is 25th May, 2021 and not when the appellant becomes aware of the occurrence of the event, decision or action complained of.

The impasse between the appellant and the four (4) sets of respondents as I said earlier I have perused the originating process, the affidavits evidence either in support of the originating summons or in response to the objections of the respondents, it is crystal clear that the primary election for the Abuja Municipal Area Council (AMAC) of the 2nd respondent took place on 23rd May, 2021. There is also no dispute that by a letter dated 25th May, 2021, the 2nd respondent forwarded the name of the 1st respondent to the 3rd respondent for the AMAC Chairmanship Election. And by paragraphs 20 and 22 of the affidavit in support of originating summons and exhibit GWAGWA 12 and Juxtaposing with paragraphs 9 and 10 of the appellants Counter Affidavit and exhibits A and B attached, it further disclosed that the 3rd respondent received the letter of the 2nd respondent on 28th May, 2021 and subsequently published the names on 6th June, 2021.

The lower Court in its judgment/ruling on the preliminary objection of the 12th-18th respondents was of the view that the cause of action arose on 25th May, 2021 by relying on the case of BELLO VS YUSUF, (supra).

The suit of the appellant was filed at the lower Court on 9/06/2021. The question to determine is whether the cause of action arose on the 25th May, 2021 or the 28th May, 2021 or the 6/06/2021. The answer can be found in the following decisions of the Supreme Court. In the case of MOHAMMED SANIMUSA VS DAVID UMAR & ORS, (2020) 11 NWLR (pt 1735) delivered on 14th June, 2019 in appeal No. SC/405/2019, the Apex Court held:-

“Where the plaintiff asserts that he won the primary of his political party but the name of a candidate that lost was sent to INEC, cause of action for the purpose of calculating 14 days stipulated in Section 285 (9) of the Constitution will accrue from the date of submission of the name to INEC”.

The Supreme Court further held in the case of SAKI VS APC, (2020) 1 NWLR (pt 1706) page 515 as follows:-

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“In a plethora of recent decisions of this Court, we have held that where the plaintiff contended that he won the primary and that another person’s name was later submitted instead of his own, his cause of action crystallizes on the date the name of other party is submitted to INEC. The rationale for this position is that the plaintiff who was satisfied with the conduct of the primary and who claims that he won, has no complaint against anyone and therefore no reason to seek redress until he discovers that someone else’s name has been submitted”.

See also APC VS LERE (supra).

In the instant case, the date in which the 1st respondent’s name was forwarded to the 3rd respondent (INEC) by the 2nd respondent and received or acknowledged by the 3rd respondent, the cause of action of the appellant arose. Thus, the letter of the 2nd respondent dated 25th May, 2021 was received by the 3rd respondent on 28th May, 2021. See community reading supporting the originating summons and paragraphs 9 and 10 of the counter affidavit of the appellant in opposing the motion and exhibit A, the Certified True Copy of the 2nd respondent’s letter received on 28th May, 2021 by the 3rd respondent.

Now a look at the date of 28th May, 2021 when the cause of action arose and the 9th June, 2021 when the suit was filed at the lower Court, by arithmetic calculation or computation of time, i.e. 28th May, 2021 to 9th June, 2021 inclusive of the date of 28th May, 2021, is 12 days. In other words, the 14 days constitutional period of filing as provided by Section 285(9) CFRN 1999 (as amended) has not expired. This is to say the appellant’s suit at the lower Court was filed within time, and the Statute of Limitation does not therefore apply.

The decision in BELLO VS YUSUF (supra) relied on by the trial Court, it appears the trial Judge did not carefully digest the facts and findings of the Supreme Court as per MARY ODILLI, JSC. In the case of BELLO VS YUSUF (supra) the Apex Court held that a cause of action arises on a date or from the time when the breach of any duty or act accrues which warrants the person who is adversely affected by such breach to institute an action to protect his legal right which has been breached. In the instant appeal, at the time the appellant won the primary election and the Election Committee of the 2nd respondent submitted their result to the 2nd respondent and various reports were issued by the 2nd, 4th and 5th respondents confirming the appellant as the person that won the primary election, his cause of complaint had not arisen and therefore he was not in position to seek legal redress. However, the cause of action occurred when the 3rd respondent received a letter of the 2nd respondent dated 25th May, 2021 on 28th May, 2021. In other words, the cause of action that will inure the appellant to have a cause of complaint was the 28th May, 2021 and NOT 25th May, 2021.

The trial Judge was therefore wrong with his finding and conclusion and this position of the trial Judge was perverse and it occasioned serious miscarriage of Justice. Accordingly, the finding and the entire ruling or judgment of the lower Court having been found to be perverse, this appeal succeeds and it is accordingly allowed. The judgment of the lower Court in Suit No. FCT/HC/M/4092/2021 delivered on 27th September, 2021 by Babangida Hassan, J. is hereby set aside.”

​It is obvious that the judgment of the Court of Appeal did not consider the dispute between the parties on the membership of the said Appeal Committee, the presence of the 1st respondent during the appeal hearing, the verdict of the Appeal Committee, when the 1st respondent was replaced with the 1st appellant as 2nd appellant’s candidate and when the 1st respondent became aware of his said replacement. His replacement with 1st appellant as candidate of the 2nd appellant was the event, decision or action complained against in this case.

One judicial view in pre-election matters involving alleged wrongful replacement of the name of the aspirant initially declared winner with the name of another person, is that it is reasonable to say that the cause of action occurred when he became aware of his replacement with another. This is the reason for our decisions in MOHAMMED SANIMUSA VS DAVID UMAR & ORS, (2020) 11 NWLR (pt 1735) delivered on 14th June, 2019 in appeal No. SC/405/2019, SAKI VS APC, (2020) 1 NWLR (pt 1706) page 515 and APC VS LERE (2020) 1 NWLR (Pt. 1705) 8254.

​These decisions did not lay it down as a rule of general application that in all pre-election cases of alleged wrongful replacement of an aspirant’s name as candidate of a Political Party, the cause of action accrues when the Party submits another person’s name to INEC as its candidate. What we held in those decisions is that the cause of action occurs when the aspirant first declared winner of the party primary election becomes aware that he has been replaced as the winner of the said primary or as candidate of the election. Because such awareness occurred actually or constructively, only when another name was submitted by the party to INEC or the list was published by INEC, that is the reason for the decisions that in those type of cases the cause of action accrued when the list of candidates is submitted to INEC or published by INEC. The Court of Appeal relied on our decision without regard to our reasons for those decisions. The portion of our judgment in Saki V APC it reproduced and relied on in its judgment clearly states this reason for the decision. At the risk of prolixity, I reproduce it here again as follows –

“In a plethora of recent decisions of this Court, we have held that where the plaintiff contended that he won the primary and that another person’s name was later submitted instead of his own, his cause of action crystallizes on the date the name of other party is submitted to INEC. The rationale for this position is that the plaintiff who was satisfied with the conduct of the primary and who claims that he won, has no complaint against anyone and therefore no reason to seek redress until he discovers that someone else’s name has been submitted”.

The other judicial view that is of the strict constructionalist hue is that the cause of action accrues from the date of the occurrence of the event decision or action complained of in keeping with the clear words of Section 285(9) of the 1999 Constitution that “… 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.” See Bello V Yusuf & Ors (2019) LPELR-47918(SC) in which this Court per Musa Dattijo Muhammad JSC (delivering the lead judgment) held thusly- “I am unable to agree with learned counsel that the 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 of 1st respondent’s non-compliance which, on the latter’s participation in the primary election creates the right to sue. The clear and unambiguous Section neither makes knowledge on the part of the appellant a precondition to the filing of the 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 the 1st defendant’s non-compliance with the 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 the 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 to do so.”

Our decision in Bello V Yusuf is later in time than our earlier decisions in Muhammad Sani Musa V David Umar & Ors, Saki V APC and APC V Lere and therefore represent our current statement of law on the matter. The latest of the three earlier decisions, APC V Lere was delivered on 10-5-2019. Our decision in Bello V Yusuf was delivered on 24-5-2021 and therefore overrules our earlier decisions by necessary implication, since this Court has the power to depart from its previous decisions and overrule itself. See Dahiru V Kamale (2005) 9 NWLR (Pt. 927) 8 and Osakwe V FCE Asaba (2010) 10 NWLR (Pt.1201) 1.

What is clear in this case is that the parties dispute the date the 1st respondent was replaced as winner of the primary and the 2nd appellant’s candidate and the date he became aware of his said replacement.

The judgment of the Court of Appeal did not resolve this dispute and the difference in the evidence of either side on the membership of the Appeal Committee set up by the 2nd appellant, the presence of the 1st respondent in the appeal hearing, the verdict of the Appeal Committee and the report submitted by the Appeal Committee to the 2nd respondent.

Having failed to do so, this Court can consider the said factual disputes arising from the evidence of both sides in exercise of its general powers under Section 22 of the Supreme Court Act 2004 to determine if the failure of the Court to determine the factual disputes occasioned a miscarriage of justice in that its decision that the suit was not statute barred would have been different but not for the error.

​The 1st respondent deposed in the affidavit in support of the Originating Summons and in the further and better affidavit in response to the counter affidavit of the 12th to 18th defendants (6th to 12th respondents herein) that the Appeal Committee was composed of Hon. Sadiq Tijjani Kida (Chairman), Hon. Uchenna Okorie (Member), Hon. Acheazi Musa (Member) and Hon. Mahmud Lukman Mamman (Secretary), that the Appeal Committee affirmed the decision of the Primary Election Committee on 23-4-2021 declaring him winner of the Election, that it is the report confirming him as winner of the election that was submitted by the Appeal Committee to the 2nd appellant and 2nd respondent, that he is not aware of any persons other than those listed above as members of the Appeal Committee, that he is not privy to the proceedings or verdict of any Appeal Committee constituted by other persons, that he became aware on the 6th of June, 2021 for the first time that his name had been removed as the 2nd appellant’s candidate for the oncoming election and replaced with that of the 1st appellant from the publication of the letter dated 25-5-2021 written by the 2nd appellant forwarding the name of the 1st appellant as its candidate for the said election, which letter the 2nd respondent received on 28-5-2021 as endorsed thereon and that he filed the suit challenging the removal and substitution of his name on 9-6-2021.

The 1st appellant herein as 1st defendant deposed in paragraphs 10 to 22 of his counter-affidavit thusly-

“10. That on the day of the primaries, the votes were cast and collated and the plaintiff was erroneously declared the winner of the election with a score of 110 while I was alleged to have scored 106 votes.

  1. That during the primary election mentioned in paragraph 10 above, it was discovered that some ballot papers used in the election were invalidated without any valid reason.
  2. That based on the discovery mentioned in paragraph 11 above, I immediately petitioned the Appeal committee for the AMAC/BWARI Chairmanship election saddled with the responsibility of considering all petitions from the conduct and outcome of the primary elections of which I was a contestant.
  3. That in my petition I claimed inter alia, that:

a. This venue was abruptly changed from Arts and culture Area 10 to front of all the international Conference center and later to the Women Development Center at a very short notice.

b. That I participated in the election and that during the primary election, a total of seven (7) votes cast in my favour were invalidated.

c. That my agents protested the invalidation of the seven votes cast in my favour but the result was declared in favour of the plaintiff who led with a margin of 4 votes as a result of the invalidation of 7 votes cast in my favour.

d. That if the 7 votes so invalidated are added to the total number of votes cast in my favour, I would have led with a margin of 3 votes.

e. That I prayed the Appeals committee to revalidate and add the 7 votes so invalidated to the total numbers of votes I scored in the election.

  1. That in its findings, the Appeals committee set up by the 2nd defendant in the course of its functions relied on the report of the electoral committee as well as the ballot papers used in the primary election.
  2. That the plaintiff and myself were invited by the Appeals committee set up by the 2nd defendant and we agreed in our oral testimonies that there was pandemonium before the announcement of the result.
  3. The Appeal Committee also discovered that out of the 9 votes declared invalid, 2 were blank and 7 thumb printed.
  4. That the invalidation of the 7 votes cast in my favour created on atmosphere or insecurity and possible violence which prompted the forced declaration of the plaintiff as the winner of the Chairmanship primaries for Area Council conducted by the 2nd defendant.
  5. That the Appeal Committee setup by the 2nd defendant recommended, based on their findings, that the plaintiff was declared the candidate of the 2nd defendant for the forthcoming Area Council election under duress and that the 7 votes in my favour were erroneously invalidated, that I being the candidate with the highest number of valid votes cast (113) be declared the winner of the AMAC Chairmanship Election and returned elected as the party’s candidate. The report from the Appeal panel for Chairmanship of Abuja Municipal Area Council which sat on the 24th day of April 2021 is hereby attached and marked as Exhibit A.
  6. That based on the recommendation of the appeal panel on the AMAC Chairmanship election I was declared winner of the AMAC Chairmanship primaries and my name sent to the 3rd defendant as the candidate of the 2nd defendant.
  7. That the averments in paragraph 16 of the plaintiff affidavit is not true because the Appeal Committee clearly stated in their report that I was the winner of the primary election.
  8. That I am not in a position to admit or deny paragraph 17, 18, and 19 of the plaintiff’s affidavit in support of the Originating summons as they are not facts within my personal knowledge.
  9. That the plaintiff had no reason to be taken aback that my name was submitted as the candidate of the 2nd defendant as he was privy to the appeal process that declared me winner of the chairmanship primaries in Abuja Municipal Area Council.”
See also  Idachaba & Ors V. University Of Agriculture, Makurdi & Ors (2021) LLJR-SC

The report of the Appeal Committee attached to the 1st defendant’s counter-affidavit as exhibit A states that the hearing of the appeal took place on 24-3-2021, that the members of the Appeal Committee are Jibrin Samuel Enejo (Chairman), Mohammed Ghali Abdulhameed (Secretary), Alhaji Abubakar A. Imam, Michel George and Yahya Suleiman, that:-

“The appeal committee relied on the report of the electoral committee as well as the ballot papers used for the primary election. The committee also invited the petitioner in person of Murtala Usman and the declared winner Suleiman Alhassan Gwagwa of which both appeared. In their oral statement, both agreed that there was a pandemonium before the announcement of the results.

The appeal committee found out that out of the nine (9) votes declared invalid, two were blank and seven thumb printed.

The seven thumb printed were in favour of Murtala Usman though faintly thumb printed. The pandemonium created an atmosphere of insecurity that led to the forceful declaration of Suleiman Hassan Gwagwa as returned elected.”

that the Committee considered that:-

“The committee having considered that seven (7) out of the nine (9) invalid votes were duly cast in favour of Murtala Usman and that the Electoral Committee declared Suleiman Alhassan Gwagwa under duress, added the seven votes to the 106 votes of Murtala Usman which brings the totality of his votes to 113 and declared Murtala Usman as the aspirant with the highest number of valid votes being 113 as the winner of the AMAC Chairmanship primary election and returned elected as the candidate of the party for the forthcoming Area council election.”

The 12th-18th defendants who were part of the National Executive Caretaker/Extraordinary Convention Planning Committee that, as agreed by both sides, set up the Appeal Committee deposed in paragraphs 5(a) to (h) and 5(a) to (d) of their counter-affidavit as follows:-

“5. That I was informed by Prof. A.U. Medaner, the Director, Organisation of the 2nd defendant, at our office at No. 60 Gaborone Street, Wuse Zone 2, Abuja on 07/07/2021 at about 12:30pm of the following facts which I verily believe them to be true:

a. That the primary election for the Chairmanship of the Abuja Municipal Area Council held on 23/04/2021.

b. That the 1st defendant herein subsequently appealed against the outcome of the said primary to the 2nd defendant and after an oral hearing from all the relevant parties (including the plaintiff), the Appeal Committee of the 2nd defendant on 24/04/2021 found that seven (7) votes out of the nine (9) invalid votes were scored by the 1st defendant and that having scored a total of 113 votes against the plaintiff’s 106 votes, the 1st defendant was the winner of the primary election. A certified true copy of the report of the 2nd defendant’s Appeal Panel for the AMA C Chairmanship primary election is annexed as Exhibit AMAC1.

c. That the plaintiff never challenged or appealed against this decision of the appeal panel to the State Executive Committee or any other body of the 2nd defendant or even before this Court.

d. That by the Constitution of the 2nd defendant, a person aggrieved with the decision of a Chairmanship primary election Appeal Panel ought to appeal to the State Working Committee (acting on behalf of the State Executive Committee) of the party, but the plaintiff never filed any such appeal.

e. That pursuant to the unappealed decision of the 2nd defendant’s Appeal Panel for the AMAC Chairmanship primary election, the 2nd defendant duly forwarded the name of the 1st defendant to the 3rd defendant vide the letter of 25/05/2021.

f. That the plaintiff was aware since 24/04/2021 that the 2nd defendant had found the 1st defendant to be the lawful candidate of the 2nd defendant for the AMAC Chairmanship election.

g. That the 12th-18th defendants made strenuous efforts to obtain documents such as ballot papers and other documents in further support of their case, but were unable to do so by reason of the abridgment of the time within which to file this counter-affidavit to 8 days.

h. That consequently the 12th-18th defendants did not have sufficient time to prepare their defence to this suit.

  1. That I was also informed by Chikaosolu Ojukwu Esq., lead Counsel to the 12th-18th defendants at our office at No. 60 Gaborone Street, Wuse Zone 2, Abuja on 07/07/2021 of the following facts which I verily believe him to be true:

a. That the decision of the Appeal Panel communicated in its report of 24/04/2021, having not been appealed against, is binding on the plaintiff and all the defendants herein.

b. That the 3rd defendant is statutorily empowered as the custodian of the electoral process to accept the decision of the Appeal Committee of the 2nd defendant as to the candidacy of the 2nd defendant for the AMAC Chairmanship election.

c. That the plaintiff has not exhausted the internal remedies within the 2nd defendant.

d. That it is in the interest of justice that this suit be dismissed.”

​The report it attached to its counter affidavit as exhibit AMAC1, as the report the Appeal Committee forwarded to it is exactly the same with the report attached to the 1st defendant’s counter-affidavit as exhibit A in all the contents. The persons stated therein as being members of the Appeal Committee are the same as in exhibit A attached to 1st defendant’s counter-affidavit. It also confirms the presence of the 1st respondent herein in the appeal hearing and decision and the recommendation made.

The 2nd to 10th defendants (2nd to 7th appellants herein) in their motion on notice filed on 1-7-2021 with 1st appellant herein to strike out the suit for being statute barred, supported the counter-affidavits of the 12th to 18th defendants and the content of the report attached to exhibit AMAC1.

The 3rd defendant (2nd respondent herein) deposed in paragraph 8(c) to (e) thusly:-

“(c) The 3rd defendant in line with its statutory functions sent a team of its officials to monitor the 2nd defendant’s Abuja Municipal Area Council (AMAC) Chairmanship Primary Election.

(d) The officials that monitored the 2nd defendant’s AMAC Chairmanship Primary Election submitted a Written Report to the 3rd defendant. A Certified True Copy of the said Report is attached to the Affidavit in support of the Originating Summons and Marked as Exhibit Gwagwa 11.

(e) The 2nd defendant also forwarded to the 3rd defendant the Report of Appeal Committee arising from the conduct of the 2nd defendant’s FCT Area Councils Primary Elections. A Certified True Copy of the said Report is hereby attached and Marked Exhibit INEC1.”

It attached to its counter affidavit the report of the Appeal Panel or Committee it said 2nd respondent herein sent to it as part of exhibit INEC1 (Pp. 673-676 Vol. 2 of the record of this appeal). The report is exactly the same in content with exhibit A attached to the 1st defendant’s counter-affidavit and exhibit AMAC1 attached to the 12th to 18th defendants’ counter affidavit.

​The 1st respondent in his affidavit evidence admitted that the Appeal Committee was set up by the National Executive Caretaker/Extra Ordinary Convention Planning Committee of the 2nd appellant and that the Appeal Committee submitted the report of its proceedings and decisions to the said National Executive Caretaker/Extra Ordinary Convention Planning Committee of the 2nd appellant and that the Appeal Committee and the 2nd respondent. Therefore the National Executive Caretaker/Extra Ordinary Convention Planning Committee that set up the Appeal Committee and to whom the Appeal Committee submitted its report is the only one that can state the report submitted to it by the Appeal Committee and the names of the persons it appointed into the Appeals Committee to set it up. The counter-affidavit of the 12th to 18th defendants (members of the National Executive Caretaker/Extra Ordinary Convention Planning Committee) on behalf of the said National Caretaker Executive Committee confirms that the members of the Appeal Committee are Jibrin Samuel Enejo (Chairman), Mohammed Ghali Abdulhameed (Secretary), Alhaji Abubakar A. Imam, Michel George and Yahya Suleiman corroborating the names mentioned in the affidavit of the 1st defendant. The report submitted to it by the Appeal Committee is attached to their counter-affidavit as exhibit AMAC1. The above names are stated therein as members of the Appeal Committee. Exhibit AMAC1 states that the Appeal Committee found that 7 of the 9 invalidated ballot papers bear faint thumb prints in favour of the 1st appellant, while two were blank. It found that the said 7 votes were wrongly invalidated. It added them to the 106 votes earlier declared in favour of the 1st appellant and found that the total votes scored by him was 113, while the votes scored by the 1st respondent was 110. It declared the 1st appellant winner of the primary election and the 2nd appellant’s candidate for the general election. Exhibit AMAC1 states that the 1st respondent was invited to the appeal hearing and was present at the hearing. The 2nd respondent also produced the Appeal Committee or Panel report that 1st respondent said was submitted to it by the Appeal Committee. It is exhibit INECI attached to its counter-affidavit. It is exactly the same with exhibit AMAC1 and exhibit 3 in 1st appellant’s counter-affidavit. Exhibits AMAC1, INEC1 and exhibit 3 defeat the evidence of the 1st respondent that he was not present in the appeal hearing. Those exhibits show beyond reasonable doubt that the 1st respondent’s version of the report of the appeal proceeding, verdict and membership of the Appeal Committee in exhibit GWAGWA 10 of the 1st respondent’s affidavit in support of the originating summons is false and contrived to create the false impression that his replacement as the 2nd appellant’s candidate occurred when the letter presenting the 1st appellant’s name was written on 25-5-2021 and that he did not know of his replacement as candidate until the said letter received by the 2nd respondent on 28-5-2021 was published on 6-6-2021 so as to avoid the invocation of Section 285(9) of the 1999 Constitution against his suit.

Exhibits 3, AMAC1 and exhibit INEC1 shows that the 1st respondent was present at the appeal hearings of 24-4-2021 and was aware of the verdict of the Appeal Committee on that day in his presence declaring that the 1st appellant and not him scored the highest votes and declaring the 1st appellant winner of the primary election and the candidate of their party for the general election.

​The replacement of the 1st respondent with the 1st appellant as the aspirant that scored the highest votes and as the winner of the primary election is the event, decision or action complained of in this case. It occurred on 24-4-2021 at appeal hearings in the presence of the 1st respondent. So the 1st respondent was aware of its occurrence on 24-4-2021. From 24-4-2021 to 9-6-2021 when the 1st respondent filed his suit at the trial Court was 47 days. So the suit was filed after the expiration of the 14 days prescribed by Section 285(9) of the 1999 Constitution within which such suit must be filed. As it is the suit statute barred and the trial Court lacked the jurisdiction to entertain and determine it.

What is clear from the foregoing is that the error of the Court of Appeal in not resolving the factual disputes listed above and in not considering exhibits 3, AMAC1 and INEC1 is substantial and occasioned a miscarriage of justice as it would not have held that the suit was not statute barred if it had considered the said exhibits.

​In the light of the foregoing, I hold that the decision of the Court of Appeal that the suit is not statute barred and that the trial Court for that reason had no jurisdiction to entertain it is wrong. It is hereby set aside. The decision of the Court of Appeal reversing the decision of the trial Court that the suit is statute barred is wrong. It is hereby set aside and the decision of the trial Court that the plaintiff’s suit is statute barred and that it has no jurisdiction to entertain it is restored. The decision of the trial Court striking out the suit is restored.

Issue No. 1 is therefore resolved in favour of the appellants

In the light of the foregoing decision in issue No.1, it is futile to determine issues numbers 2 to 6 in the appellant’s brief

On the whole, this appeal succeeds as it has merit. It is allowed. The judgment of the Court of Appeal delivered on 3-12-2021 in Appeal No. CA/ABJ/CV/766/2021, the reliefs granted and consequential orders made therein are hereby set aside. The judgment of the High Court of the Federal Capital Territory delivered on 27-9-2021 in suit No. FCT/HC/CV/1052/2021 that the suit is statute barred and that it therefore lacked jurisdiction to entertain it including the order striking the suit out is restored. For avoidance of doubt, the 1st appellant whose name was submitted by the 2nd appellant in its letter dated 25-5-2021 to the 2nd respondent as its candidate for the general election of Chairman Abuja Municipal Area Council remains its candidate for that election.

​The 1st respondent shall pay costs of five million naira to the 1st and 2nd appellants.

In the light of the above decision in the main appeal, the determination of the cross-appeal is rendered academic and futile.

SC.1166/2021

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