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State electoral commissions must be properly constituted

Published by The Nation on Tue, 10 Feb 2015

The argument then centred around thefact that with the merger of ACN, ANPP and CPC, into APC, the three parties that merged had gone into extinction and, therefore, could not be substituted with another party without proof of the new partys certificate of registration. I resolved the issue then by taking judicial notice of the merger of the three political parties under section 124(1) and (2) of the Evidence Act 2011, being a fact of common knowledge in Nigeria. The objection to the capacity here is an expanded version of the points taken up at the interlocutory level. The contention of learned senior counsel for the 1st 8thdefendants and learned counsel for the 9thdefendant is that the claimants sole witness stated in his evidence in-chief that the original claimants still remained independent political parties in spite of their merger and that the Independent National Electoral Commission was yet to approve the merger of three parties into one as required by law. They also argue that failure of the claimant to tender her certificate of registration is fatal, as her capacity to sue and be sued has not been established; which according to them is a fundamental requirement to institute an action. Mr.Ocholi, SAN, arguesper contra, stating that the claimant has locus standi.44. The case, HSFCO (Nig) Ltd v. Springside Co. Ltd (SC)(supra) cited by Mr.Aruwa, of counsel, provides a guide for the resolution of this point. In it, the Supreme Court held:The issue as to whether or not a plaintiff has a locus standi to institute the action is determinable from the averments in the statement of claim In other words, it is the averments in the statement of claim that would disclose the rights and obligations or interest of the plaintiff which has been violated or threatened with violation or infringement then, the trial court would be in a position to determine whether the plaintiff has locus standi to institute the action (P. 85 lines 1020).Guided by the above authority, I took a glimpse at the averments in the statement of claim. In paragraph 1 of the amended statement of claim filed pursuant to an Order of this court of October 14, 2013, the claimant avers:The claimants (sic) is a registered political party in Nigeria with their State Office (sic) in Lokoja, Kogi State, while they have their offices at all Local Government Area and words of the State within the jurisdiction of this Honourable Courts (sic) (P.I).45. In response, the 1st 8thdefendants and the 9thdefendants admitted the facts. In paragraph 1 of the further amended joint statement of defence of the 1st 8thdefendants, filed on 4/02/2014, it is stated as follows:The 1st 8th Defendants (hereinafter called the Defendants) admit paragraph 1 of the Amended statement of claim (herein-after called the claim).Similarly, the 9thdefendant in paragraph 1 of her statement of defence dated 4thNovember 2013, avers as follows:The defendant (sic) admits paragraphs 1, 2, 3, 4, and 5, of the statement ofclaim.46. It is a well-recognised principle that has received the stamp of authority of the highest court of this land, in numerous decisions, that if a particular averment of a claimant is admitted, there will be no onus to prove what has been admitted by the opposite party (Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573. Accordingly, I hold that, the defendants having admitted, in their pleadings, that the claimant is a registered political party in Nigeria, it does not lie in their mouths to challenge her locus standi or capacity to institute this action again. The claimant here, on the pleadings before this court, has discharged the onus of proof cast on her and section 133 (1) of the Evidence Act 2011 necessarily imposes a burden on the defendants to prove the negative (Bunge v. Governor of Rivers States)(supra). This is particularly so in the light of the provision of section 80 of the Electoral Act, which stipulate that:Every political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.47. The provision of this section has put to rest any doubt about the locus standior capacity of the claimant to institute this action. It has alsorendered all the arguments of learned counsel for the defendants, with due respect, puerile and futile. It is my holding, therefore, that having regard to the pleadings before me, the claimant is a registered political party, and therefore, has the capacity and locus standi to undertake the prosecution of this action.48. The next preliminary point taken up by Mr.Akubo, SAN relates to the application or otherwise of the provisions of section 2 of the Public Officers Protection Law, Cap 111, Laws of Northern Nigeria 1963 (as applicable to Kogi State). It is the contention of Mr.Akubo SAN that this action is statute barred having not been brought within three months from the date of appointment of the 4th 8thdefendants in 2008, when the cause of action arose. The basic response of Mr.Ocholi, SAN, is that this case falls within one of the exceptions to the general rule on the application of statute of limitation. The learned senior counsel, however, fails to buttress this argument with any legal authority.49. Let me state here that the exact date of the appointment of the 4th 8thdefendants in 2008 is only extracted in evidence. The argument of Mr.Akubo, SAN, is only premised on the calculation of the lapse of five years between 2008 and 2013 when this action was filed. Be that as it may, section 2(a) of the Public Officers Protection Law Cap 111 Laws of Northern Nigeria (as applicable to Kogi State) provides:2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority the following provisions shall have effect;(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained, of or in case of a continuance of damage or injury within three months next after50. The basic principle is that time begins to run for purposes of limitation of law from the date of the accrual of the cause of action in a case (see Ofili v. Civil Service Commission (2007) LPELR-8538 (CA). The crucial question here is to determine when the cause of action in this case accrued. In determining this question, it is pertinent to know the true meaning of a cause of action. In Aiyelabegan v. L.G. Service Commission, Ilorin, Kwara State (200( 22WRN108, it was held that a cause of action is a set of facts and or the factual situation which gives a party a right to judicial reliefs. The cause of action in a case incorporates every fact which would support a partys right to succeed or to have the judgment of the court in his favour. What constitutes a cause of action is put more succinctly in Ekiti State Electoral Commission &Ors v. PDP &Anor (2013)LPELR2041 (CA) in the following words: the whole or complete set of circumstances giving rise to an enforceable claim. Therefore, it consists of the fact or diverse facts which put together, give the plaintiff a right to sue. It has two component elements, firstly, the wrongful act or omission of the defendant which gives the plaintiff his reason to complain; and secondly, the consequent damage(Onyemenam, JCA, P. 54).And when the issue arises as to what constitutes cause of action in a suit, the writ of summons and statement of claim constitute the podium for its determination (see Ofili v. Civil Service Commission (supra). The relevant averments in this regard are paragraphs 7, 8, 13, 14 and 15 of the amended statement of claim which are reproduced hereunder:7. The 5th 8thDefendants are commissioners/ members of the 3rdDefendant appointed by the 1stDefendant but are members of PDP in their various wards and Local Government Area of their origin in Kogi State.8. The 9thDefendant is also a registered Political Party in Nigeria having the Governor of Kogi State and 4th 8thDefendants are some of her members and also have the right to sponsor candidates for the forthcoming Local Government election in Kogi State.13. The Claimants shall be highly prejudiced if the 4th 8thDefendants are allowed to remain in that office to conduct the forthcoming Local Government Election as a member of PDP which party is also in control of the 1stDefendant and is sponsoring candidates to contest the election which the 3rdDefendant is to organise.14. The composition of the 3rdDefendant headed by the 4thDefendant is illegal; unconstitutional null and void.15. The 1stDefendant had taken several steps in respect of the forthcoming Local Government Election in Kogi State addressing several Press Conferences regarding the dates and activities leading to the conduct of Local Government Election in Kogi State. Minutes of some of the meeting and Press release are hereby pleaded so also the election timetable.51. It is clear from the foregoing paragraphs that the cause of action in this case necessarily consists of the appointment of the 4th 8thdefendants by the 2nddefendant as members of the 3rddefendants; the composition of the 3rddefendant; the facts relating to the allegation of the 4th 8thdefendants membership of the 9thdefendant; and the steps taken in respect of the local government election which was yet to hold as at the time this action was filed on 20thMarch 2013.52. From both the writ of summons and the statement of claim that as at 20thMarch 2013, the constitutional validity of the composition of the 3rddefendant to conduct the local government election of 4thMay 2013 was a live issue. The approach adopted by Mr.Akubo, SAN, in defining and restricting or limiting the time the cause of action arose in 2008 when the 4th 8thdefendants were said to have been appointed, is, with due respect, faulty, as it ignores other relevant facts and circumstances that constitute the cause of action in this case. This action goes beyond merely challenging the appointment of the 4th 8thdefendants. As at 20thMarch 2013, (when the action was filed), the local government election that constitutes an integral part of this action was yet to hold. In all the circumstances of this case, in the light of the foregoing, I hold that this action is not statute barred.53. The third preliminary point that calls for determination here is whether or not this action constitutes an abuse of the process of this court. Both learned counsel for the defendantsrefer to what they call three antecedent suits which according to them were on the same subject-matter and instituted by the original claimants who were predecessors of the claimant. The three suits are HCL/57/2011 (Exhibit D1), HCL/151m/2012 (Exhibit D2 and HCL/303m/2012 (Exhibit D4). It is contended that the claimants cannot litigate on the same matter already litigated upon in Exhibits D1, D2 and D4.54. A similar issue also came up at the interlocutory stage of this action and I pronounced on same, holding that the process of this court had not been abused by the institution of this action. This is what I said:This case before me, in essence, challenges the constitutionality or otherwise of the composition of Kogi State Independent Electoral Commission (KGSIEC), the third defendant. One of the cases before the Chief Judge is an application for judicial review by way of certiorari, prohibition and mandamus over the election slated for 8/12/12 and the appointment of liaison officers for the local government area councils, as the case may be. In my view, none of the cases possesses the elasticity to stretch its subject-matter to cover the other. Each case exists on its peculiar subject, facts and circumstances I should also add here that the process of this court has not been abused in any way by the institution of this action in this court. (Omolaye-Ajileye, J., PP 89)I have no reason to depart from these pronouncements. Istand by them. I also wish to add here that I fail to see how the principle of estoppel by conduct or sections 169 and 151 the Evidence Act apply to the claimant. This is because, this action was instituted to challenge the May 4, 2013 local government election, at a time when the election was yet to hold.Objection to Admissibility ofSome Documents55. Mr Akubo, SAN, has asked me to discountenance Exhibits P1, P6, P9, P10 and P15. The documents were admitted, in the first place, because Mr.Akubo, SAN, without objection. All the same, he has now drawn my attention to the fact that Exhibits P1 and P6 are public documents which have not been certified. The point of objection to Exhibits P9, P10 and P15 is that they are mere photocopies. I have re-examined the documents and found the points raised by Mr Akubo, SAN, well made out. There are statutory prohibitions against the admission of the documents in the form in which they have been presented to the court. I, shall, therefore, discountenance them. See sections 104 and 105 of the Evidence Act 2011.The post State electoral commissions must be properly constituted appeared first on The Nation.]]>
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