BELLO BARAU GUSAU V. ALL PROGRESSIVES CONGRESS (APC) & ORS. (2019)

Background

Bello Barau Gusau sought to contest the Zamfara State governorship primary election of the All Progressives Congress (APC). He purchased the party’s expression-of-interest form for N500,000 and paid the prescribed N5,000,000 nomination fee. Although he was screened and cleared to participate, the party subsequently withdrew his certificate of clearance after receiving a complaint alleging that he was not a registered APC member and had not participated in party activities. He was consequently excluded from the primary election, at which Alhaji Abdulaziz Abubakar Yari was presented as the party’s candidate.

Gusau commenced proceedings by originating summons at the Federal High Court, seeking declarations that the withdrawal of his clearance certificate and his exclusion from the primary were unlawful, unconstitutional and beyond the powers of the party and its screening committee. He also sought orders compelling the return of his certificate, restraining the third respondent from presenting himself as the APC candidate, and directing INEC not to recognise him. In the alternative, he sought an order compelling INEC to recognise him as the candidate allegedly chosen by the electorate, together with N2,000,000 as campaign expenditure.

The Federal High Court upheld preliminary objections by the APC and other respondents, holding that the claims concerned internal pre-election matters, that Gusau lacked locus standi, and that the court lacked jurisdiction. The Court of Appeal dismissed his appeal and affirmed the trial court’s decision. Gusau appealed to the Supreme Court. The fourth respondent, INEC, raised a further preliminary objection that the appeal was incompetent because it was filed outside the constitutional time limit.

Issues

1. Whether the preliminary objection challenging the competence of the appeal should be determined before the substantive grounds of appeal.
2. Whether section 285(11) of the Constitution of the Federal Republic of Nigeria 1999, as altered by the Fourth Alteration Act No. 21 of 2017, applied to the appeal.
3. Whether the constitutional provision prescribing fourteen days for an appeal in a pre-election matter was procedural and therefore capable of retrospective operation.
4. Whether the appellant’s notice of appeal, filed one month and five days after the Court of Appeal’s judgment, was statute barred.

Ratio Decidendi

The Supreme Court held that a preliminary objection must ordinarily be considered first because its purpose is to terminate an appeal, wholly or partly, in limine. Where the objection succeeds, there is no need for the court to examine the merits of the appeal.

The Court distinguished substantive law from procedural law. The general rule is that substantive legislation operates prospectively because retrospective application may impair existing rights or obligations. However, a law dealing only with procedure or the practice of the courts may operate retrospectively. A provision regulating the time within which proceedings or appeals may be commenced is procedural. It does not alter the character of the underlying cause of action, create a new substantive liability, or remove a defence previously available.

Applying the principle in Ojokolobo v. Alamu, the Court held that provisions shortening or extending the time for instituting proceedings are generally retrospective. Section 285(11), which requires an appeal from a decision in a pre-election matter to be filed within fourteen days of the judgment, was therefore applicable to the pending appeal notwithstanding that the proceedings began before the provision came into force.

Court Findings

The Court found that the Court of Appeal delivered its judgment on 7 December 2017, while the appellant filed his notice of appeal on 12 January 2018. The notice was therefore filed outside the constitutionally prescribed fourteen-day period. The fact that the Fourth Alteration Act came into force after the earlier proceedings did not prevent its application because the relevant provision concerned appellate procedure and limitation of time.

The Court rejected the appellant’s reliance on Hope Democratic Party v. Obi. That authority concerned substantive rights and the law applicable to a cause of action, whereas the present case concerned the procedural time limit for filing an appeal. The Supreme Court also emphasised that it could not confer jurisdiction on itself where the appeal was incompetent and stale.

Conclusion

The preliminary objection filed by INEC was sustained. The appeal was held to be statute barred and was struck out. The Supreme Court did not determine the substantive questions concerning Gusau’s locus standi, his exclusion from the APC primary, or the jurisdiction of the Federal High Court. The parties were ordered to bear their respective costs.

Significance

The decision confirms the strict approach of Nigerian appellate courts to constitutional time limits in pre-election litigation. It establishes that section 285(11) is procedural and may apply retrospectively to pending matters. Parties involved in pre-election disputes must therefore monitor statutory changes and file appeals within the prescribed period, since failure to comply deprives the appellate court of jurisdiction and can end the appeal without consideration of its merits.