Requirement for The Qualification of a Candidate into the State House of Assembly

CASE TITLE: SHITTU v. INEC & ORS (2023) LPELR-59826(CA)

JUDGMENT DATE: 23RD FEBRUARY, 2023

PRACTICE AREA: ELECTORAL MATTERS

LEAD JUDGMENT: MUHAMMAD IBRAHIM SIRAJO, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on pre-election matters.

FACTS:

This appeal is against the judgment of the Federal High Court, Lagos delivered on 12/01/2023 by Justice I.N. Oweibo.

The Appellant and 2nd Respondent were aspirants at the 3rd Respondent’s primary election for the selection of the candidate to fly the flag of the 3rd Respondent in the forthcoming 2023 general election for the election of Member representing Surulere Constituency II in the Lagos State House of Assembly. The 2nd Respondent won the primary election and was nominated by the 3rd Respondent as its candidate for the election and her name and particulars were forwarded to the 1st Respondent by the 3rd Respondent.

As enjoined by the Electoral Act, the 1st Respondent published, at its Lagos Office, the 2nd Respondent’s Affidavit in Support of Personal Particulars (Form EC9). Consequent upon the publication, the Appellant became aware that the 2nd Respondent’s nomination is invalid in view of false information supplied by her in the Affidavit (Form EC9) concerning her academic qualifications as well as the forgery of Higher National Diploma Certificate of Yaba College of Technology and NYSC Exemption Certificate.

The Appellant challenged the nomination of the 2nd Respondent before the trial Court by taking a writ of summons, in which he sued the Respondents, respectively as 1st, 2nd and 3rd Defendants, claiming declaratory reliefs that the information contained in Form EC9 is false; that the HND Certificate and NYSC Exemption certificate presented by the 2nd Respondent are forged; that the 2nd Respondent is disqualified from contesting the election on account of false information and forgery; an order declaring the Appellant as the candidate of the 3rd Respondent and perpetual injunction mandating the 1st Respondent to remove the name of the 2nd Respondent and replace it with that of the Appellant.

The 1st Respondent on one hand and the 2nd & 3rd Respondents jointly, on the other, filed their respective statements of defence wherein they denied the claim of the Appellant. At the conclusion of trial, the trial court, in a considered judgment dismissed the claim of the Appellant. Aggrieved by the judgment, the Appellant filed an appeal at the Court of Appeal.

At the Court of Appeal, the 2nd and 3rd Respondents filed a separate notice of preliminary objections praying the Court for an order dismissing or striking out the appeal in its entirety, for being statute barred, incompetent and therefore, the Court lacks jurisdiction to hear same.

ISSUES:

The Court of Appeal considered the merit of the preliminary objection.

DECISION/HELD:

On the whole, the preliminary objection succeeded. The Court of Appeal held that the Appellant’s suit at the Federal High Court was statute barred and thus, the trial Court was without jurisdiction. Furthermore, the appeal and suit at the trial Court were struck out.

RATIOS:

• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Nature of pre-election matters; whether the time is of the essence in such matters

“A pre-election matter, such as the one in this appeal, is sui generis and time is of the very essence in every step of it. Therefore, whenever the issue of non-compliance by a party with constitutional or statutory timelines for taking any step is raised, the Court will not shut its eyes

• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Statutory provision as regards time within which pre-election matters should be filed

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

• ELECTORAL MATTERS – QUALIFICATION/DISQUALIFICATION – Requirement for the qualification of a candidate into the State House of Assembly

“Section 106 of the said Constitution provides: Subject to the provisions of Section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if – (a) he is a citizen of Nigeria; (b) he has attained the age of twenty-five years; (c) he has been educated up to at least the School Certificate level or its equivalent; and (d) he is a member of a political party and is sponsored by that party.”

• ELECTORAL MATTERS – DUTY OF A POLITICAL PARTY – Duty of a political party to submit to INEC a list of candidates it intends to sponsor in an election

“Section 29 of the Electoral Act, 2022, provides thus: 1) Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.

(2) The list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the Federal High Court, High Court of a State, or Federal Capital Territory, indicating that he or she has fulfilled all the constitutional requirements for election into that office.

(3) The Commission shall, within seven days of the receipt of the personal particulars of the candidate, publish the same in the constituency where the candidate intends to contest the election.

(4) Any person may apply to the Commission for a copy of the nomination form, affidavit and any other document submitted by a candidate at an election and the Commission shall, upon payment of a prescribed fee, issue such person with a certified copy of the document within 14 days.

(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.

(6) Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election.”

• ELECTORAL MATTERS – PRE-ELECTION MATTERS – Position of the law on the determination of accrual of the cause of action in a pre-election matter involving the allegation of the presentation of false information/certificate(s) to INEC; when time begins to run for filing a pre-election matter and effect of a pre-election matter filed out of time

“Learned senior counsel for the Appellant argued that the Appellant’s action at the lower Court is founded on Section 29 of the Electoral Act 2022 and Section 106 of the Constitution and that there is nothing in those provisions that say that the day of occurrence of an event as provided for under Section 285 (9) of the Constitution, in the circumstances of this case, shall be the date of presentation of the Affidavit in Support of Personal Particulars (Form EC9) and the forged Certificates. It is important to state that the date of occurrence of events is not usually stated in the Constitution.

The Constitution, being an Organic law cannot condescend into such minute details as every case has to be determined by its peculiar circumstances. What constitutes the date of the occurrence of the event or action complained of, is to be inferred and determined from the claim presented to the Court and the totality of the facts of the case. For example, where the complaint of an Aspirant is about the conduct of the primary election, the date of the occurrence of the event is the date of the conduct of the primary election and declaration of result.

When an Aspirant became aware of the result is of no moment. If, on the other hand, the complaint of an Aspirant is that he won the primary election but a different person was nominated by his political party, the date of the event is the date of the submission of that person’s name to INEC, not the date the Aspirant got to know about the submission. In the instant case, from the Record referred to above, the 2nd Respondent’s Form EC9 was received by the 1st Respondent on 12/07/2022. That was the date of the event, the date the Appellant’s cause of action arose.

Time shall begin to run from that date and in the computation of time, that date cannot be excluded. The Appellant has the right, as provided for under Section 29 (4) of the Electoral Act, to apply for a certified true copy of the 2nd Respondent’s Affidavit in Support of Personal Particulars the moment she submits it to the 1st Respondent, without having to wait until same is published by the 1st Respondent. The 14 days permitted the Appellant within which to challenge in Court the particulars provided by the 2nd Respondent, begins to run from 12/07/2022 and terminates on 25/07/2022, both dates inclusive.

In this circumstance, the action of the Appellant, filed on 03/08/2022, was filed 9 days after the constitutional limit of 14 days. In stating that the Appellant’s cause of action accrued on 12/07/2022, the date the 2nd Respondent’s Form EC9 was received by the 1st Respondent, I am fortified by the decisions of the Apex Court in Abdullahi vs Loko & Ors (2022) LPELR-57578 (SC); Karshi & Ors vs. Gwagwa & Ors (2022) LPELR-57544 (SC): Bello vs Yusuf & Ors (2019) LPELR- 47918 (SC). The latest decision of the Supreme Court on when time begins to run for the purpose of Section 285 (9) of the Constitution is the case of Eze vs. Umahi (2022) LPELR-59157 (SC). In that case, Jauro, JSC, in a rather lengthy passage on pages 38-41 of the Report, reiterated the current position of the law, thus: “The Appellant contended that the computation of time ought to begin from the time when she became aware of the withdrawal of Chief Augustine Chukwu Umahi, the winner of the primary election conducted on 28th May, 2020.

A similar issue came up for determination in ABDULLAHI V. LOKO & ORS (2022) LPELR-57578 (SC) where I had the privilege of delivering the lead judgment and stated as follows at pages 29 – 32 of the report: “This Court has moved from the above position and it is currently of the view that it is the date of the occurrence of the event, decision or the action complained of that is to be reckoned with and not the date the aggrieved party became aware of the event, decision or complained of. In BELLO V. YUSUF & ORS (2019) LPELR-47918 (SC), this Court, per Musa Dattijo Muhammed, JSC (delivering the lead judgment) held as follows: “I am unable to agree with the learned counsel that 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 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 on his becoming aware of 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 of doing so. See DANGANA & ANOR V. USMAN & ORS (2012) LPELR- 25012 (SC) and GANA V. SDP & ORS (2019) LPELR-47153 (SC). 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 the 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 period is beyond reproach.”

The approach of this Court in the aforementioned case was also recently adopted in the case of HON. MURTALA USMAN KARSHI & ORS. V. HON. SULEIMAN GWAGWA & ORS. Appeal No. SC. 1166/2021, delivered on 10th February 2022, wherein my learned brother, Agim, JSC after reviewing the former position as reflected in APC V. LERE; MUSA V. UMAR and SAKI V. APC (supra), made it expressly clear that in the computation of time, the knowledge of the claimant regarding the event, decision and action complained of is irrelevant.”

With this comprehensive review by the Apex Court on the previous and current position of the law on when time begins to run for the purpose of limitation under Section 285 (9) of the Constitution, it is clear that the 14-day window accorded the Appellant to ventilate his grievances in Court started running on 12/07/2022, the date the 2nd Respondent’s Affidavit in Support of Personal Particulars was received by INEC, the 1st Respondent.

The action of the Appellant at the lower Court, having been filed on 03/08/2022, 23 days after the cause of action arose, is statute barred and the lower Court was robbed of the jurisdictional vires to entertain it. In the circumstance, the 2nd & 3rd Respondents’ Preliminary Objection is sustained. Consequently, this appeal and the Appellant’s suit before the lower Court are both struck out.”