When Cause of Action Will Accrue When a Candidate Asserts Winning a Primary Election but the Name of Another Candidate Was Submitted

FACTS:

This appeal is against the decision of the Federal High Court, Kano Judicial Division, made on December 19, 2022, in a pre-election suit. The Court granted the second respondent’s originating summons, which sought declarations and related remedies.

The first respondent, who claimed to be the appellant’s candidate for the Gwale Federal Constituency in Kano State, argued that he had won the primary election with 31 out of 31 votes on May 22, 2022. He contended that his name should have been published by the third respondent (INEC) as the appellant’s candidate, instead of the second respondent, who scored zero votes but was announced by INEC on June 24, 2022, as the candidate for the upcoming general election.

In response, the first respondent instituted an action via originating summons at the trial court. He raised several questions and sought various reliefs, including a declaration that he was the winner of the Gwale Federal Constituency primary election and therefore the candidate of the appellant. He also sought a declaration that the publication of the second respondent’s name by INEC was a violation of the appellant’s electoral guidelines and the Electoral Act, rendering it unlawful and void. Additionally, he requested a declaration that INEC’s failure to publish his name as the appellant’s candidate was unlawful and unconstitutional.

The trial court ruled in favor of the first respondent, finding merit in his case, answering his questions favorably, and granting all his requested reliefs. Aggrieved by the decision of the trial Court, the Appellant appealed to the Court of Appeal.

CASE TITLE:     PDP v. Aminu & ORS (2023) LPELR-60065(CA)

JUDGMENT DATE:      14TH FEBRUARY, 2023

JUSTICES:                 ITA GEORGE MBABA, JCA

BOLOUKUROMO MOSES UGO, JCA

USMAN ALHAJI MUSALE, JCA  

DIVISION: KANO

PRACTICE AREA:       PRE-ELECTION MATTERS

ISSUES:

The appeal was determined on the following issues viz:

1. Whether the trial Court was right in its decision that the Plaintiff/1st Respondent suit as filed was not statute-barred.

2. Whether the trial Court was right in its decision when it held that Plaintiff/1st Respondent who did not participate in the primary election conducted by the National Working Committee acting on behalf of the National Executive Committee of the appellant had the locus standi to institute this suit.

COUNSEL SUBMISSIONS:

The appellant’s counsel relied on a plethora of cases, including the case of The President Federal Republic of Nigeria v. National Assembly & Ors (2022) LPELR-59516 (SC), to argue that the cause of action in this case arose from the appellant’s primary election on May 22, 2022. He claimed that the respondent’s action, filed on July 4, 2022, was statute-barred by Section 285(9) of the 1999 Constitution since it exceeded the prescribed time limit. He also cited APC v. Uduji (2020) 2 NWLR (Pt. 1709) 541 to support his contention that the cause of action did not arise from the publication of candidates’ names by INEC.

In response, the 1st respondent’s counsel argued that the computation of time under Section 285(9) of the Constitution is determined by the event being complained of. He contended that the event, in this case, was the publication of the second respondent’s name by INEC on June 24, 2022, in violation of the Electoral Act. He cited the case of The President Federal Republic of Nigeria v. National Assembly & Ors (2022) LPELR-59516 (SC) to emphasize that a cause of action arises from the occurrence of the neglect or default being complained of. He further distinguished APC v. Uduji, stating that it was based on the 2010 Electoral Act and focused on a different issue.

Regarding the argument raised by the appellant’s counsel about the submission of the second respondent’s name to INEC on June 15, 2022, the 1st respondent’s counsel pointed out that this argument was not raised in the appellant’s preliminary objection and therefore should not be considered. He emphasized that the event complained of by the first respondent was the publication of the second respondent’s name on June 24, 2022, and that constituted the cause of action.

The 1st respondent’s counsel also referenced a recent decision in APC v. PDP & Ors (2023) LPELR-59254 (CA), where it was held that a cause of action cannot arise until all necessary actions to complete the complaint have taken place and the aggrieved party is aware of the infringement of their rights. He argued that the first respondent’s cause of action only became complete and started running when INEC published the candidates’ names.

In summary, the appellant’s counsel argued that the cause of action arose from the primary election, while the 1st respondent’s counsel contended that it arose from the publication of the second respondent’s name.

DECISION/HELD:

On the whole, the appeal was dismissed.

RATIO:

ELECTORAL MATTERS – PRE-ELECTION MATTERS: When the cause of action for the purpose of calculating 14 days stipulated in Section 285 (9) of the Constitution will accrue where a candidate asserts winning primary election but the name of another candidate was submitted to INEC

“Now, Section 285(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) upon which appellant founds his argument reads 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.” (Italics mine) The words guiding the calculation of the 14 days limitation period therein are “occurrence of the event, decision or action complained of in the suit.” That inquiry, in turn, turns on how such a plaintiff’s claims and complaints in the action are framed: See the apex Court’s decision in the pre-election case of Zailani v. Gumau (2020) 2 NWLR (Pt. 1709) 452 @ 466-467 (SC). Applying that to this case, it will be seen, without any doubt, that the complaint of 1st respondent in his summons is the publication by INEC (3rd Respondent) of 2nd Respondent’s name instead of his own, he, 1st Respondent, having won its primary election of 22nd May, 2022 and so earned the statutory right to have his name submitted to INEC as its candidate by his political party, and for INEC to publish only his name for the general election.

He made that abundantly clear in all his questions for determination as well as his reliefs earlier reproduced and accentuated by me in this judgment. It is that publication by INEC, which finally confirmed the fears he had earlier expressed in his Exhibits SULE 8A and 8B that 2nd Respondent was ‘plotting’ to replace his name with that of appellant as its candidate for Gwale Federal Constituency of Kano State, that forms the ‘occurrence of the event, decision or action complained of [by him] in the suit’ within the meaning of Section 285(9) of the 1999 Constitution in his suit. That ‘event or action’, it is common ground, only took place only on the 24th day of June, 2022. He commenced his instant originating summons in the Federal High Court on the 4th day of July, 2022, which makes it just eleven (11) days from the publication. He was therefore well within the 14 days’ time limit set by Section 285(9) of the 1999 Constitution for his action.

His cause of action could not have occurred on the 22nd May, 2022, day of the conduct of the election, which election he claims, with the support of INEC that monitored it, that he won. A cause of action is an act on the part of a defendant that gives the plaintiff a cause of complaint. See Labode v. Otubu (2001) FWLR (PT. 43) 207 @ p.232 para G-H. It is the bundle or aggregate of facts in the relationship between the parties which the law will recognize as enabling the plaintiff to enforce the claim against the Defendant. See Ibrahim v. Osim (1988) NSCC 1184 @ 1198. In this case, 1st respondent claimed he won appellant’s 22nd May, 2022 primary election and was so declared by the appellant’s officers sent by its National Executive Committee, so what would have been his cause of complaint against that election for his statutory 14 days to run from that very day as suggested by appellant? This arm of the argument of Mr. Fanokun for appellant is completely misconceived.” Per UGO, J.C.A. (Pp. 17-20, Paras. C-A)