ILIYASU V. RIJAU: On Time within which To File Pre-Election Matter. An insight into the decision of the Supreme Court

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PRE-ELECTION MATTERS (1): DECIDED CASE CONSIDERED: ILIYASU V. RIJAU (2019)16 NWLR PT. 1697 AT 1. – Main issue: On Time Within Which To File Pre-Election Matter. An insight into the decision of the Supreme Court therein. Courtesy: Moruff O. Balogun Esq.

 

PARTIES IN FULL:
JA AFARU ILIYASU
V.
1. SHEHU SALEH RIJAU
2. ALL PROGRESSIVES CONGRESS [APC] 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC]

Summary of facts:
The appellant, along with other aspirants, contested for the office of member representing Magama/Rajau Federal Constituency of Niger State at the House of Representatives on the platform of the 2nd respondent in the primary election conducted on 3rd October 2018. The appellant claimed he won the election having scored 4, 777 votes, but that to his surprise, the 2nd respondent, instead of forwarding his name, rather forwarded the name of the 1st respondent who did not participate in the primary, to the 3rd respondent.

Aggrieved, he instituted an action by way of an originating summons against the respondents. It was supported by an affidavit sworn to by the appellant and several exhibits. The 1st, 2nd and 3rd respondent filed counter-affidavits to the originating summons.

In his counter-affidavit to the originating summons the 1st respondent stated that the primary election took place on 4th October 2018; that there were 5 aspirants, including himself, and that he scored the highest number of votes, that is 13,383, while the appellant came a distant second with 1,963 votes, and that his name was accordingly forwarded to the 3rd respondent as the 2nd respondent’s candidate on 18th October 2018. In addition to the counter-affidavit the 1st respondent also filed a preliminary
objection to the competence of the suit on the grounds, inter-alia, that the suit was statute-barred having been commenced outside the time prescribed by section 285(9) of the 1999 Constitution, as altered.

The 3rd respondent also filed a counter-affidavit where it was deposed that although it deployed officials to the Magama/Rijau Federal Constituency to monitor the primary election on 4th October, 2018 the election did not hold, but nevertheless the 2nd respondent forwarded the name of the 1st respondent to it on 18th October 2018 as its candidate for the election.



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In its judgment, the trial court overruled all the grounds of the preliminary objection filed by the 1st respondent and held that the appellant’s cause of action accrued on 18th October 2018 when the 1st respondent’s name was submitted to the 3rd respondent; that the originating summons filed on 26th October 2018 was within the 14 days stipulated in section 285(9) of the 1999 Constitution as altered and was competent. It then granted the reliefs sought by the appellant.

Aggrieved, the 1st respondent appealed to the Court of Appeal which allowed the appeal and held that the cause of action accrued on 3rd October 2018 when the primary election was conducted and therefore the suit was statute-barred.

Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999, as altered, states as follows:
“285(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.

It is not surprising that the plaintiff, now appellant, was dissatisfied with the decision and has appealed to this court ( Supreme Court) seeking redress vide a notice of appeal filed on 24/4/2019 containing 9 grounds of appeal.

At the hearing of the appeal on 10/6/2019, A.M, Aliyu, SAN adopted and relied on the following processes in urging the court to allow the appeal:

Appellant’s brief filed on 2/5/19;
Reply to 1st respondent’s brief filed on 7/6/19;
Reply to 2nd respondent’s brief filed and deemed properly filed on 10/6/2019; and
Two lists of additional authorities filed on 10/6/19.

For the 1st respondent, Y.C. Maikyau, SAN adopted and relied on the 1st respondent’s brief in urging the court to dismiss the appeal. Babatunde John Kwame Ogala Esq., adopted and relied on the 2nd respondent’s brief filed on 7/6/2019 and a list of
additional authorities in urging the court to dismiss the appeal. The 3rd respondent, though duly notified of the hearing date was absent and unrepresented by counsel and did not file any process in the appeal.

In the appellant’s brief, two issues were formulated for the determination of the appeal as follows:
Whether the learned Justices of the court below were right in holding that the learned trial Judge ought not to have relied on the evidence in the respondents’ counter affidavits to determine the date when the cause of action in this case accrued. (Grounds 3 and 8).
Whether the learned Justices of the court below were right to hold that the appellants cause of action accrued on the 3rd of October 2018 when the 2nd respondent conducted her primary election even when no wrong was committed against the appellant on that date. (Grounds I,2,4, 5, 6, 7 and 9)

The 1st respondent formulated 3 issues for determination as follows:
Whether the court below was right when it held that in view of the totality of the pleadings of the appellant (who was the plaintiff at the trial court) and the evidence in support thereof the suit of the appellant is statute barred same having been filed outside 14 (fourteen) days after the primary election of the 2nd respondent held on the 3rd of October, 2018 contrary to section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (Forth Alteration Act No. 21) 2017? (Grounds 1,2, 4, 5, 6,7 and 9)

Whether the court below was right when it relied on the originating summons and affidavit in support thereof and the documents attached to it as the only processes to consider in order to ascertain when the appellants (plaintiff at the trial court) cause of action arose? (Grounds 3 and 8)

Whether having regard to the conflict in dates or uncertainty in the actual date of the conduct of the primary election in the originating summons filed by the appellant as plaintiff; the claim of the appellant before the trial court was justiciable and the learned trial Judge had the jurisdiction to entertain same?

Held: The Supreme Court unanimously allowing the appeal by setting aside the decision of the court below (Court of appeal).

The following issues were raised and determined by the Supreme Court:

On time within which to file pre-election matter-
By virtue of section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 as altered, notwithstanding anything to the contrary in the 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.
A cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his
legal right that has been breached. In the instant case, the cause of action accrued on 18th October 2018, which all the parties agreed was the date on which the 1st respondent’s name was submitted to the 3rd respondent. The originating summons was filed on 26th October 2018, well within the 14 days prescribed by section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as altered by the 4th Alteration Act, 2017). Therefore, the Court of Appeal erred in holding that the suit at the trial court was statute-barred.

On what is cause of action-
A cause of action consists of:
the fact or combination of facts that establishes or gives rise to a right of action;
a factual situation which gives a person a right to judicial relief;
every fact which it would be necessary to prove, if traversed, to support the plaintiff’s right to the judgment of the court;
the entire set of circumstances giving rise to an enforceable claim; and
the act on the part of the defendant which gives the plaintiff his cause of complaint.

On how to determine whether suit discloses cause of action-
In order to determine whether a suit discloses a cause of action, it is the originating processes that are examined by the court to ascertain whether they raise some questions fit to be determined by a Judge. In the instant case, the trial court, in
determining the nature of the appellant’s cause of action or whether the originating summons disclosed a cause of action, did not go outside the originating summons and the supporting affidavit.
In determining when a cause of action accrued, as opposed to whether the suit discloses a cause of action, the court is entitled to look at all the processes before it.

On whether more than one cause of action can arise out of same transaction-
There may be more than one good and effective cause of action arising out of the same transaction and the cause of action accrues on the happening of the latest of such facts.

On effect where limitation law applies-
The effect of a limitation law, such as section 285(9) of the Constitution of the Federal Republic of Nigeria 1999, as altered, is that although a plaintiff may have a cause of action, the statute removes the right to judicial relief after the expiration of the prescribed period. The important consideration therefore is the date the cause of action accrued.

On onus on defendant alleging action statute-barred-
When a defendant relies on the provision of section 285 (9) of the Constitution of the Federal Republic of Nigeria 1999 as altered, the onus is on him to prove the date of the occurrence of the event, decision or action complained of vis-à-vis the date of filing of
the suit to show that same was filed outside the 14 days prescribed.

On what-constitutes pleadings in suit commenced by originating summons-
In a suit commenced by originating summons, the affidavit in support and the counter-affidavit constitute the pleadings.

On status of counter-affidavit in suit commenced by originating summons-
In a suit commenced by originating summons, the counter-affidavit constitutes part of the evidence the court is entitled to consider in resolving the issue.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
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