Whether Knowledge of the Occurrence of an Event is Material in Determining When Time Begins to Run in Pre-Election Matter

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CASE TITLE:  EZE v. UMAHI & ORS (2022) LPELR-59157(SC)

JUDGMENT DATE:    9TH DECEMBER, 2022

JUSTICES:

  • KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC
  • MOHAMMED LAWAL GARBA, JSC
  • HELEN MORONKEJI OGUNWUMIJU, JSC
  • IBRAHIM MOHAMMED MUSA SAULAWA, JSC
  • ADAMU JAURO, JSC

PRACTICE AREA:       ELECTORAL MATTER

FACTS:

​On 28th May 2022, the 2nd respondent conducted its primary election to select its candidates for the Ebonyi South Senatorial District in preparation for the 2023 General Elections. The appellant and one Chief Augustine Chukwu Umahi were the only two aspirants cleared to contest the said election. Chief Augustine Chukwu Umahi won the election with 279 votes while the appellant came second with 5 votes. It was subsequently alleged that there was a disruption of the said primary election, consequent upon which the 2nd respondent conducted a fresh primary on 9th June 2022. The 1st respondent was the only contestant at the re-conducted primary. Chief Augustine Chukwu Umahi withdrew his nomination after he won the primary conducted on 28th May 2022 vide a letter dated 9th June 2022. It was also alleged by 1st and 2nd respondents that the appellant also withdrew her nomination by a letter of same date, which she vehemently denied. The 1st respondent won the re-conducted primary. Although his name was submitted to the 3rd respondent by the 2nd respondent as its candidate for Ebonyi South Senatorial District, the 3rd respondent did not publish his name. This prompted him to institute an action before the trial Court by way of originating summons seeking the determination of the following question:

  1. Whether having regard to the provisions of Section 29(3), 32(1), 32(3) and 84(1), (2), (5), (13) and (14) of the Electoral Act, 2022, and Section 78 of the Nigerian Constitution 1999 and paragraph 15(a) of the Third Schedule to the 1999 Constitution, the 1st Plaintiff was not validly nominated and cannot be rejected or excluded by the defendant from contesting the 2023 General election as the candidate of the 2nd Plaintiff for Ebonyi South Senatorial District in the National Assembly.
  1. Whether this Honourable Court should not make an order compelling the Defendant to accept and include the name of the 1st Plaintiff as the validly nominated candidate of the 2nd Plaintiff for the 2023 General election for Ebonyi South Senatorial District in the National Assembly.

The appellant filed a counter affidavit and counterclaim, wherein she denied withdrawing her nomination and also denied being notified of any re-conduct of the primary on 9th June 2022. It was the appellant’s contention that, upon the withdrawal of Chief Augustine Chukwu Umahi, as the person with the second highest number of votes cast at the primary election of 28th May 2022, her name ought to have been submitted to the 3rd respondent as the 2nd respondent’s candidate. She also contended that the 1st respondent was not a Senatorial but a Presidential aspirant of the 2nd respondent, up till 12 noon on 9th June 2022, when he failed to secure the 2nd respondent’s presidential ticket and therefore lacked the locus standi to institute the action.

The trial Court dismissed the claims of the 1st and 2nd respondents and granted the appellant’s counterclaim in part. The appellant was dissatisfied with the judgment on the ground that in granting the counterclaim in part, the trial Court granted reliefs not sought for, granted some reliefs in favour of persons unknown and/or strangers to the proceedings and general inconsistency of the reliefs granted. She therefore filed an appeal at the Court of Appeal.

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At the hearing of the appeal, the issue of the appellant’s locus standi to file the counterclaim was raised by the 1st and 2nd respondents. It was also argued that her joinder and the counterclaim were statute barred. ​In a considered judgment, the Court of Appeal held that the suit was statute barred and struck it out. On the merit, it dismissed the appellant’s appeal and granted the reliefs sought by the 1st and 2nd respondents in their Originating Summons.

The appellant being dissatisfied with the decision further appealed to the Supreme Court.

ISSUES: 

The appeal was determined on the sole issue of:

Whether the Court below was right when it held that the counterclaim of the appellant was statute barred as at 20th July 2022 when it was filed?

COUNSEL SUBMISSIONS 

Learned counsel for the Appellant contended that the cause of action in the counterclaim arose on 19th July 2022 when the appellant became aware of the withdrawal of Chief Augustine Chukwu Umahi as the originally nominated candidate of the 2nd respondent or at the earliest by imputation of public notice on 7th July 2022 when the event of the withdrawal was first published vide the Originating Summons of the 1st and 2nd respondents. Counsel submitted that for a defendant to file a counterclaim he must have an existing cause of action.

Counsel contended that even though her claim stems from the primary election of 28/5/2022, her cause of action could not have arisen on that date since she did not win and did not challenge the said primary. Learned counsel submitted that the cause of action accrued and crystallised on the actual date of the voluntary withdrawal of the winner on 7/7/2022 when the Originating Summons was filed and the fact of the withdrawal of Chief Augustine Umahi published for the first time. Counsel argued that there is nothing in the evidence relied upon by the 1st and 2nd respondents to prove that the appellant’s cause of action accrued earlier than the date of filing the suit.

In reaction to the above submissions, learned senior counsel for the 1st respondent submitted that there is no cause of action inuring to the appellant and that even if there were, it has been extinguished by effluxion of time. Counsel submitted that there is no appeal against this crucial finding as to the appellant’s cause of action and it is therefore binding on her.

Learned counsel for the 2nd respondent submitted that a statute of limitation such as Section 285(9) of the 1999 Constitution, as amended, operates to extinguish the right of action even where a cause of action would have existed. Learned counsel noted that the appellant did not challenge the cancellation of the primaries held on 28th May 2022 and urged the Court to uphold the findings of the Court of Appeal.

In his reply to the respondents’ briefs, learned counsel for the appellant submitted that the Court below misconceived the appellant’s case, as time could not have begun to run against her on 28th May 2022 since she did not challenge the emergence of Chief Augustine Chukwu Umahi as the winner of that primary. He maintained that the appellant’s cause of action was anchored on the withdrawal of the winner and not on the primary election.

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DECISION/HELD 

In conclusion, the appeal was dismissed.

RATIO

  1. ELECTORAL MATTERS – PRE-ELECTION MATTERS: Whether knowledge/awareness of the occurrence of the event/decision/action complained of is material in the determination of when time begins to run to institute a pre-election matter

“It has been argued strenuously by the appellant that the cause of action only accrued when she got wind of the fact of Chief Augustine C. Umahi’s withdrawal of his nomination and this was when her attention was drawn to the filing of the 1st respondent’s suit on 19th July 2022 or that at best, she had constructive notice of the withdrawal and re-conduct of the election by the publication of those facts in the 1st respondent’s Originating Summons filed on 7th July 2022. It is therefore contended that the counterclaim filed on 20th July 2022 was filed within the limited period, whichever date was used for the calculation. 

A similar argument was made in the case of Jafar Sani Bello vs Abba K. Yusuf & Ors. (2019) LPELR – 47918 (SC), where, in reaction to a preliminary objection to the competence of the appellant’s suit at the trial Court filed outside the 14 days prescribed in Section 285(9) of the Constitution, the appellant contended that his cause of action accrued from the date he became aware that the 1st respondent in that case had not fulfilled the conditions for rejoining the party (Peoples Democratic Party) and not the date on which the primary election was conducted. His Lordship, M.D Muhammad, JSC who wrote the leading judgment held thus at pages 18 – 20 D – A: 

“I am unable to agree with the learned counsel that the appellant’s cause of action begins to run, by virtue of the limitation period 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 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, the appellant’s knowledge of 1st respondent’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 upon his becoming aware of 1st respondent’s non-compliance and further excluded the date the 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. 

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 lower Court in excluding appellant’s knowledge of 1st respondent’s non-compliance and taking into cognizance the date his cause of action arises in its computation of the limitation is beyond reproach.” Hon. Justice Mary U. Peter-Odili, JSC in his concurring judgment, copiously referred to by the lower Court, held inter alia at pages 29 – 30 A – C: 

“It is difficult to push forward the position as espoused by the appellant that the cause of action arose when the appellant realised or got the knowledge of the event or issue. The reason is simple and logical as it is to render uncertain and tied to peoples’ convenience whenever a party decides to activate a Court process depending on his subjective whim. The implication being that the statute of limitation would begin to run at the point when the plaintiff/appellant in this instance, puts across as time of becoming aware of the happening of the event that he is aggrieved over. That position of

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uncertainty will aid indolence and give a one-sided subjective advantage to a party to the detriment of the other side. 

It is now trite and even an over-flogged cliche that equity does not aid the indolent. That is to say, if such a subjective stance is allowed to stand, it would encourage and breed uncertainty in the polity and create the ludicrous situation where a person can wake up a year or more after an election and swearing into an elective position to have a challenge to his nomination by way of substitution for [an] election that brought the person to power… 

The law cannot recognise or endorse such a speculative situation and so every stakeholder must be watchful or vigilant of his legal rights.”

I think the point has been sufficiently made that the knowledge of the appellant has no role to play in the computation of time for the purpose of Section 285(9) of the 1999 Constitution, as amended. Equity aids the vigilant. A contestant in any election must have his ears close to the ground and be prepared for any eventuality. The provision of Section 285(9) of the Constitution is clear and unambiguous and as held in Bello Vs Yusuf (supra), the 14 days prescribed starts to run from the date of the occurrence of the event, decision or action complained of in the suit. The appellant applied to be joined in the suit to enable her challenge the emergence of the 1st respondent in the reconducted primary of 9th June 2022 (which was the subject of the 1st respondent’s suit) and to enable her obtain orders to enforce her perceived right to be ratified or confirmed as the candidate of the 2nd respondent being the only standing aspirant/runner up upon the voluntary withdrawal of Chief Augustine Chukwu Umahi who emerged at the primaries of 28th May 2022. The two lower Courts made concurrent findings that the withdrawal of Chief Augustine Chukwu Umahi and the re-conduct of the primary took place on 9th June 2022. That is the date on which the appellant’s cause of action accrued. As of that date, all facts or combinations of facts giving the appellant the right to complain had occurred. See: A.G. Adamawa State Vs A.G. Federation (2014) LPELR -23221 (SC) @ 52 A – C; Woherem JP vs Emereuwa & Ors (2004) 8 SCM 45; Fadare & Ors. vs A.G. Oyo State (1982) NSCC 52 @ 60.” Per KEKERE-EKUN, J.S.C.

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