Senator Nicholas Tofowomo v. Hon. Alfred Agboola Ajayi & Ors (2025)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

EMMANUEL AKOMAYE AGIM, JSC (Delivering the leading judgment)

This appeal No. SC/CV/1526/2022 was commenced on 6/12/2022, when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal in appeal No. CA/AK/228/2022 delivered on 29/11/2022 dismissing the appeal to it for lack of merit and affirming the judgment of the Federal High Court of Nigeria sitting at Akure delivered on 17/10/2022 in suit No. FHC/AK/CS/83 2022 dismissing the suit for being statute barred.

The parties herein have filed, exchanged and adopted their respective briefs as follows: – appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief, 3rd respondent’s brief, appellant’s reply brief to 1st respondent’s brief, appellant’s reply to 2nd respondent’s brief and appellant’s reply brief to 3rd respondent’s brief.

The appellant’s brief raised three issues for determination as follows:

1. Whether the decisions of this honourable court in Karshi v. Gwagwa (2023) 33 WRN 146 and Abdullahi v. Loko (2023) 28 WRN 23 on one hand, overruled the decisions of this honourable court in Modibbo v. Usman (2020) 4 NWLR (Pt. 1712) 470, Adamu v. Dantiye (2022) 1 NWLR (Pt. 1810) 1, Atiku Abubakar & Anor v. INEC & 2 Ors. (2021) 45 WRN 72 and Peoples Democratic Party & Anor. v. INEC & Ors. (SC/CV/381/2021) delivered on 7th July, 2012 (on the other hand), in respect of accrual of a cause of action on a case strictly premised on the circumstances covered by section 29 of the Electoral Act, 2022 – Grounds 1, 6 and 7 of the notice of appeal.
2. Whether the lower court was not wrong in its finding that the appellant’s cause of action accrued on either of 9/6/2022 when exhibit FEE2 was dated or 13/6/2022 when exhibit AA4 and PDP 3 was/were made – Grounds 2, 3, 4, and 5.
3. Considering the entire circumstances of this case, whether the lower court’s decision which affirmed the decision of the trial court was correct. Ground 8, 9, and 10.

The 1st respondent’s brief raised two issues for determination as follows:

1. “Whether having regard to the clear provision of section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), and the cases of Karshi v. Gwagwa (2023) 33 WRN 146, Abdullahi v. Loko (2023) 28 WRN 23, the lower court was not right when it held that the case of the appellant is statute barred as the appellant’s cause of action accrued on either of 9/6/2022 when exhibit FEE2 was dated or 13/6/2022 when exhibits AA4 and PDP 3 was/were made. (Grounds 1, 2, 3, 4, 5, 6, 7 and 9).
2. Whether considering the peculiar circumstances of this case, the lower court’s decision which affirmed the decision of the trial court was not correct. (Grounds 8 and 10)”.

The 2nd respondent’s brief raised three issues for determination as follows:

1. “Whether the decisions of this honourable court in Karshi v. Gwagwa (2023) 33 WRN 146 and Abdullahi v. Loko (2023) 28 WRN 23 one hand, overruled the decisions of this honourable court in Modibbo v. Usman (2020) 4 NWLR (Pt. 1712) 470, Adamu v. Dantiye (2022) 1 NWLR (Pt. 1810) 1, Atiku Abubakar & Anor. v. INEC & 2 Ors (2021) 45 WRN 72 on the other hand, in respect of cases premised on accrual of a cause of action in a pre-election matter (Grounds 1, 6 & 7 of the notice of appeal)
2. Whether the lower court was not right in its findings that the appellant’s cause of action accrued on either of 9/6/2022 when exhibit FEE2 was dated or 13/6/2022 when exhibit AA4 and PDP3 were made – Grounds 2, 3, 4 and 5 of the notice of appeal.
3. Whether the decision of the lower court which affirmed the decision of the trial court in this matter was not correct. (Grounds 8, 9 and 10)”.

The 3rd respondent raised one issue for determination as follows:

“1. Whether the lower court was right in holding that the appellant’s cause of action accrued upon becoming aware of the submission of alleged false information by the 1st respondent and not upon the publication of the false information by 3rd respondent? (Distilled from grounds 4, 5, 7 and 10 of the notice of appeal).”

All the issues for determination raised in the briefs of the respective parties dwell on the correctness of the judgment of Court of Appeal affirming the judgment of the trial court that the case brought by the appellant as plaintiff in the trial court on 5/7/2019 is statute barred.

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief. I will determine the three issues together.

I have carefully read and considered all the arguments in all the briefs herein on these issues.

Let me start the determination of the merits of the said arguments by reproducing here section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (the 1999 Constitution) that prescribed the time within which a pre-election matter must be filed in court.

The exact text of that provision reads thusly

“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.”