Is Knowledge of the Occurrence of the Event or Action Complained of Material in the Determination of when Time Begins to Run in a Pre-Election Matter

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 the 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 an 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.

2. 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.

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 merit, it dismissed the appellant’s appeal and granted the reliefs sought by the 1st and 2nd respondents in their Originating Summons.

The appellant 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 of 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 the 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.