In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 17th Day of February, 2023

Before Their Lordships

Chima Centus Nweze

Mohammed Lawal Garba

Outbyte Driver Updater
Adamu Jauro

Tijjani Abubakar

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/CV/60/2023

Between

HON. AYINDE AYINLA USMAN APPELLANT

And

RUKAYA MOTUNRAYO SHITTU RESPONDENTS
INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
ALL PROGRESSIVES CONGRESS
(Lead Judgement delivered by Honourable Emmanuel Akomaye Agim, JSC)

Facts

The Appellant commenced Suit No. FHC/IL/CS/63/2022 in the Federal High Court by way of originating summons on 20th July, 2022, claiming that it is his name and not that of the 1st Respondent that ought to have been submitted by the 3rd Respondent to the 2nd Respondent as the 3rd Respondent’s candidate for the general election into the office of member of Kwara State House of Assembly for Owode/Onire State Constituency, Asa Local Government Area of Kwara State. The basis of the Appellant’s claim was that he scored majority of the votes cast in the 3rd Respondent’s primary election that held on 26th May, 2022, and was declared the winner of the said primary election. He sought inter alia, a declaration that having won the said primary election, he had become the 3rd Respondent’s candidate to be nominated and sponsored for election as a member of the Owode/Onire State Constituency of Kwara State House of Assembly. He also sought an order of court, nullifying the submission of the 1st Respondent’s name to the 2nd Respondent as the 3rd Respondent’s candidate for the said constituency.

The 1st and 3rd Respondent disputed the claims of the Appellant via their respective counter-affidavits, and rather, claimed that it was the 1st Respondent who was entitled to have her name submitted by the 3rd Respondent to INEC as its candidate and whose name was duly submitted because she had scored majority of the lawful votes cast in the said Owode/Onire House of Assembly primary election of 26th May, 2022 and was declared winner. They claimed that no written result sheets were issued, and the results were simply announced orally to the hearing of all present at the primaries.

After considering the affidavits and written addresses of all sides, the trial court on 26th May, 2022 delivered judgement and granted the reliefs sought by the Appellant, except the 8th relief. Aggrieved by this decision, the 1st Respondent filed an appeal at the Court of Appeal. In its judgement delivered on 28th December, 2022, the Court of Appeal found that the suit commenced at the trial court was statute barred, and that the originating summons that commenced it was incompetent because it was not signed by the Plaintiff or his legal practitioner. The Court of Appeal therefore, struck out the suit and set aside the judgement of the trial court.

Dissatisfied with the decision of the Court of Appeal, the Appellant lodged an appeal before the Supreme Court.

Issue for Determination

The Supreme Court considered the 3rd issue submitted by the Appellant, in determining the appeal:-

Whether the Court below was not wrong in its decision that the Appellant’s cause of action arose on 26th May, 2022 when the primary election was held, and the suit filed on 20th July, 2022 was statute barred by virtue of Section 285(9) of the Constitution of the Federation Republic of Nigeria, 1999 (CFRN, 1999), when from the facts before the Court, the Appellant as the winner of the primary election did not complain about the conduct of the primary election.

Arguments

The Appellant contended that the event complained of, is the submission of the 1st Respondent’s name to INEC as candidate of the 3rd Respondent on 14th July, 2022, because that was when he became aware that the 3rd Respondent had decided not to recognise or accept him as its candidate.

The 1st and 3rd Respondent on their part, argued that the announcement of the primary election result on 26th May, 2022 was the event, decision and action complained of because both sides were disputing the fact of who scored the majority vote cast and was declared winner of the election, and this was the central issue of fact joined by the affidavits of both sides that required adjudication by the trial court.

Court’s Judgement and Rationale

After considering the arguments raised by the parties, the Apex Court narrowed down the issue germane for determination to “whether the suit at the trial court that has led to this appeal was filed within 14 days from the date of the occurrence of the event, decision or action complained of as required by S.285(9) of the 1999 Constitution.

The Court held that whether or not the suit was filed within 14 days would depend on the event, decision or action complained of. The Court held that the Appellant’s contention that the event complained of is the submission of the 1st Respondent’s name to INEC as candidate of the 3rd Respondent on 14th July, 2022, because that was when he became aware that the 3rd Respondent had decided not to recognise or accept him as its said candidate, was defeated by his deposition in paragraph 32 of his affidavit to his originating summons wherein he expressly stated that “after the primary election and while awaiting the 1st Defendant to nominate and submit the name of the Plaintiff to the 2nd Defendant as its candidate for Owode/Onire State Constituency of Asa Government Area of Kwara State, the 1st Defendant issued to the 3rd Defendant the INEC FORMS PARTICULARS OF CANDIDATES AND NOMINATION FORM which the 3rd Defendant filled and submitted to the 1st Defendant for onward submission to the 2nd Defendant”.

The Apex Court stated that going by the above deposition, it was obvious that the Appellant was aware of the event that showed that the 3rd Respondent had decided not to recognise or accept him as its candidate long before 14th July, 2022, and the Appellant had in fact, admitted that the 3rd Respondent had decided not to recognise or accept him as its candidate before this date by his own deposition. The event that formed the cause of action was thus, the 3rd Respondent’s issuance to the 1st Respondent of the INEC FORMS OF PARTICULARS OF CANDIDATES AND NOMINATION FORM (INEC FORM FC9) on 19th June, 2022 which the Appellant was aware of, and which the 1st Respondent filled and submitted to the 3rd Respondent for onward transmission to the 2nd Respondent.

It follows therefore, that the Appellant’s failure to recognise or accept the 3rd Respondent’s candidate after the primary election, which by his own claim is the event, decision or action he complained of, first occurred on 19th June, 2022 when the 3rd Respondent issued INEC FORM FC9 to the 1st Respondent to fill as its candidate for the general elections, and the 3rd Respondent’s submission of the 1st Respondent’s name and filled form to the 2nd Respondent on 14th July, 2022 was a further act of the 2nd Respondent’s non-recognition and non-acceptance of the Appellant as its candidate.

The Supreme Court held that the 14 days period allowed under Section 285(9) of the 1999 Constitution for the Appellant to file his pre-election suit against the event he was complaining about, must thus be reckoned from 19th June, 2022 when the said event first occurred. Therefore, the suit filed by the Appellant on 20th July, 2022 (31 days after the said event first occurred) to complain about the refusal of the 3rd Respondent to accord him recognition as its candidate for election as a member of the Owode/Onire Constituency of the Kwara State House of Assembly was filed out of time, and consequently statute barred. The Court held that the filing of the suit 31 days after 19th June, 2022 when the event complained of occurred, was contrary to Section 285(9) of the 1999 Constitution and was a feature that robbed the trial court of jurisdiction to entertain the suit.

Appeal Dismissed.

Representation

Ayinla Salman Jawando, SAN with G. E. Adole and D. A. Afolayan for the Appellant.

Y. A. Dikko with H. O. Abaya and A. A. Katibi for the 1st Respondent.

M. A. Yusuf for the 2nd Respondent.

Magaji O. Abdulkadir for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)