When Right of Action and Cause of Action Will Crystalize/Accrue in an Action Seeking a Declaration that Information/Document(S) Presented by a Candidate to INEC is False Under Section 29(5) of the Electoral Act, 2022

CASE TITLE:  EDEVIE v. OROHWEDOR & ORS (2022) LPELR-58931(SC)

JUDGMENT DATE:  21ST OCTOBER, 2022

JUSTICES:  AMINA ADAMU AUGIE, JSC

MOHAMMED LAWAL GARBA, JSC

ADAMU JAURO, JSC

TIJJANI ABUBAKAR, JSC

EMMANUEL AKOMAYE AGIM, JSC

PRACTICE AREA:  ELECTORAL MATTERS

FACTS:

​The petition of Plaintiff was that the 1st Respondent presented false information, documents and forged certificates to the 2nd Respondent, in a bid to satisfy the constitutional requirements for contesting the election into the office of the Governor of Delta State. Plaintiff submitted that the 1st Respondent was in fact not qualified to contest for the said office. Plaintiff tendered various exhibits submitted by the 1st Respondent to the 2nd Respondent. In sum, therefore, Plaintiff alleged that the said certificates presented to the 2nd Respondent were false, did not represent his earned credentials, and did not, therefore, belong to him.

Upon thorough evaluation of all the evidence, the trial Court held that the Plaintiff had established his claim and therefore granted all the reliefs sought. The 1st Respondent was accordingly removed as the successful candidate and in his place, the Appellant was, by the order of the trial Court, made the candidate of the party for the gubernatorial election.

​Peeved, the 1^st Respondent appealed to the Court of Appeal where his appeal was allowed. Dissatisfied by the Court of Appeal decision, the Appellant appealed to the Supreme Court.

ISSUES:

The appeal was determined upon consideration of the issues thus:

1. Whether the learned Justices of the Court of Appeal were right when they held that the 1st Respondent could rely on his Notice of Appeal which was filed on 20th July, 2022 when it had been abandoned:
2. Whether the learned Justices of the Court of Appeal were right when they held that the 1st Respondent could rely and raise issues on incompetent Grounds and Particulars of Appeal
3. Were the learned Justices of the Court of Appeal right in raising, suo motu, issues which were not raised by the 1st respondent and resolving same against the Appellant without affording the Appellant an opportunity to be heard thereon.
4. Was the Court of Appeal right when it held that the Appellant’s suit at the trial Court was not properly commenced by an Originating Summons?
5. Was the Court of Appeal right when it held that the cause of action of the Appellant had not crystallized and that this action was premature?

COUNSEL SUBMISSIONS

Learned counsel for the Appellant submitted that the provisions of Section 29(5) of the Electoral Act, 2022 should be given its full effect and should not be circumscribed by the provisions of another section. He submitted that Section 29(5) of the Electoral Act, 2022 does not prescribe that an aspirant who has a complaint must wait until the name and particulars of the candidate has been submitted by the party to INEC before he can approach the Court. Learned Senior Counsel submitted that the cause of action under Section 29(5) of the Electoral Act would have crystallised once a candidate has emerged from the primary election of the party concerned and it is established that the false information presented by that candidate is in relation to any of the items set out in Section 177 of the Constitution

In response, learned counsel for the Respondents submitted that a cause of action under Section 29(5) of the Electoral Act, 2022 would only accrue upon the publication of the candidate’s information and affidavit which allegedly contains false information by the 3rd Respondent, INEC and an aspirant will be required to file his suit within 14 days from the date of the publication by INEC. He noted that it is not in contention that the Appellant commenced the action leading to this appeal before the submission of the 1st Respondent’s name by the 2nd Respondent as its gubernatorial candidate to the 3rd Respondent; therefore, the action is premature.

Counsel further contended that Section 29(5) could not be considered in isolation but a holistic reading and conjunctive interpretation of the provisions of Section 29(1) to (6) of the Electoral Act, 2022 must be considered in order to determine the effect of the provisions. It was then the submission by learned Senior Counsel that the right to institute an action on the ground that a candidate submitted false information under Section 29(5) of the Electoral Act, 2022 can only crystallise upon the submission of the candidate’s information and affidavit to the 3rd Respondent. Learned Counsel further argued that no legal or constitutional right of action was available to the Appellant at the time he instituted the suit.

Finally, Learned Senior Counsel submitted that the doctrine of Qua timet, which allows a person to seek equitable relief from future probable harm to a specific right or interest, applied in by the lower Court is inapplicable to this case since the Appellant’s legal right or interest had not even crystallised or arisen at the time he commenced this suit.

DECISION/HELD

In conclusion, the appeal was dismissed.

RATIO

1. ELECTORAL MATTERS – QUALIFICATION/DISQUALIFICATION: Position of the law on right of action and when cause of action will crystalize/accrue in an action seeking a declaration that information/document(s) presented by a candidate to INEC is false under Section 29(5) of the Electoral Act, 2022

“From the questions for determination submitted by the Appellant in his Originating Summons, which are reproduced in the lead judgment, his case is brought pursuant to the following laws – Sections 177(d) and 182(1)(j) of the 1999 Constitution (as amended) and Section 29(5) of the Electoral Act 2022.

Section 177(d) of the 1999 Constitution (as amended) stipulates that a person shall be qualified for election to the office of Governor of a State if “he has been educated up to at least School Certificate level or its equivalent”, and Section 182 (1) (j) of the 1999 Constitution (as amended) further provides that:

(1) No person shall be qualified for election to the office of Governor of a State if- (j) he has presented a forged certificate to the Independent National Electoral Commission.

And Section 29(5) of the Electoral Act 2022, specifically provides as follows –

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.

In effect, the right of action under Section 29(5) of the Electoral Act is reserved for aspirants at the Primaries where the affected candidate emerged as winner. The Appellant and first Respondent contested the Primaries conducted by the second Respondent on 25/5/20022 as aspirants; the first Respondent emerged the winner with 590 votes and the Appellant was first runner up with 113 votes.

Thus, his right of action the subject matter of the suit is not in doubt. But there is a difference between accrual of right and accrual of cause of action – see Oko & Ors V. A.G., Ebonyi State (2021) LPELR-54988(SC), wherein this Court per Peter-Odili, JSC, eloquently explained the difference as follows:

When a right accrues, it is the duty of the beneficiary of that right to make moves to claim his right. When the move is made without success or a favourable response from the other Party, there is nothing more to infer than that the refusal is tantamount to a denial. At this point, the cause of action has accrued and is now enforceable through the instrumentality of a judicial process… In reiteration, a right of action is the right to bring a specific case to Court, but the right is enforceable with the happening of certain events.

These events, which must take place before the Claimant’s right of action is activated, are collectively referred to as the cause of action. It is the accrual of the cause of action, which confers on the aggrieved Party the right to institute an action to enforce that right. In this case, the Appellant argued that there is nothing in the 1999 Constitution and the Electoral Act that requires an aggrieved aspirant to wait until the name of a candidate is submitted to the third Respondent before he can commence an action under Section 29 (5) of the Electoral Act; that for a cause of action to crystallize under Section 29 (5) of the Electoral Act, the Plaintiff only needs to show that the Political Party conducted Primaries, that he was an aspirant at the primaries, and that the aspirant, who emerged winner and candidate of the political Party, submitted false information for his participation in the Primaries. The Appellant’s contention is that all these factors are complete in this case.

But the first and second Respondents contend that Section 29(5) of the Electoral Act cannot be read in isolation from Sections 29 (1) – (4) of the Act; and that a combined reading of the provisions will reveal that the intention of the law is that a right of action can only be activated after the submission of the name of an affected candidate to the third Respondent; not before such event.

The first and second Respondents are right; the said Section 29(5) of the Electoral Act 2022 cannot be read in isolation from the other subsections. It is a cardinal rule of interpretation of statutes that the entire provisions of the statute should be considered collectively, and holistically, and no Section should be construed disjointedly or separately – see Umeano V. Anaekwe (2022) LPELR-46855(SC), wherein this Court per Garba, JSC, observed as follows:

As clearly demonstrated in the authorities of this Court on the interpretation of statutes (including subsidiary legislations such as the Rules of Court) Subsections/Sub-rules of a Section/Rule, which all deal with the same subject matter, are required to be

considered construed; one in relation to the other and holistically to bring out the real intention of the Legislature in making provisions. The provisions are never to be considered and interpreted in isolation of each other and without regard to the subject they together provide for.

Now, the said Section 29(1) (5) of the Electoral Act 2022, provides as follows:

(i) 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 in that office.

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

(4) Any person may apply to the Commission for a copy of 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 a 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.

Under Section 152 of the Electoral Act, Commission “means the Independent National Independent Commission [i. e., INEC] established by the Constitution”. Read together, the political Parties must submit their list of candidates to INEC, “in the prescribed Forms” within a certiain time. The list or information submitted by a candidate must be accompanied by an affidavit sworn to, by him or her. Within seven days of the receipt of the candidate’s personal particulars, INEC must publish it in the constituency where he or she intends to contest election.

Any person may apply to INEC for a copy of the affidavit and any other document submitted by a candidate. An aspirant, who has reasonable grounds to believe that any information given by the candidate in the affidavit, or other document submitted by him is false, may file a suit at the Federal High Court seeking a declaration that the information contained in the affidavit is false.

Clearly, the affidavit referred to in Section 29(4) and (5) is the affidavit mentioned in Section 29(2), must be sworn to by the candidate at any of the Coutts listed therein, and which must be attached to the list of candidates submitted to INEC by the political peaty, as stated in Section 29(1) of the Act. Besides, under Section 182(1) (j) of the 1999 Constitution (as amended), a person is disqualified from contesting the office of Governor if he presents a forged certificate to INEC, therefore, the identity of the recipient of any alleged forgery or falsification of information is not the political Party itself but INEC.

In other words, a complaint by an aspirant that the candidate of his Party presented false information in relation to his or her constitutional requirements to contest the election, can only be the subject of a Court action after the name of the candidate has been submitted to INEC, therefore, the Court of Appeal was standing on firm ground when it held that the action filed was premature.

What is more, Section 29(5) of the Electoral Act states that the aspirant, who believes that the candidate presented false information in the affidavit may “file a suit at the Federal High Court seeking a declaration that the information contained in the affidavit is false”. In this case, the Appellant did not seek any such declaration in the suit he filed at the trial Court. Even so, the trial Court, in answering his question for determination No 2 in the Originating Summons, concluded that he proved the said allegations against the first Respondent.

This is unacceptable because it goes against all known principles about declaratory reliefs, which are not granted as a matter of course – see Dumez Ltd. V. Kwakhoba (2008)

18 NWLR (Pt. 1119) 361, wherein this Court stated:

The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are granted even on admission by the Defendant, where the Plaintiff fails to establish his entitlement to the declaration by his evidence.

In this case, the very foundation for considering the Appellant’s suit is lacking, because he did not seek a declaration from the trial Court that the information contained in the first Respondent’s affidavit is false. A declaration that the said information is false is the foundation upon which the action filed is predicated, and his failure to seek the said declaration renders the said suit incompetent.” Per AUGIE, J.S.C.