INDEPENDENT NATIONAL ELECTORAL COMMISSION V. OGBADIBO LOCAL GOVERNMENT & ORS. (2015)

Background

This appeal concerned the alleged suppression of the Otukpa State Constituency in Ogbadibo Local Government Area of Benue State. The respondents, comprising Ogbadibo Local Government, political representatives and community leaders, commenced proceedings by originating summons at the Federal High Court, Abuja, on 25 October 2011. The matter was later transferred to the Makurdi Division and registered as Suit No. FHC/MKD/CS/17/2012.

The respondents sought declarations that the Benue State House of Assembly was not properly constituted under sections 91 and 112 of the Constitution of the Federal Republic of Nigeria 1999. They also alleged that INEC acted improperly by failing to include the suppressed Otukpa Constituency among constituencies proposed for restoration. The principal relief sought was an order compelling INEC to restore the constituency so that the affected people could enjoy representation in the State House of Assembly.

INEC challenged the competence of the suit by preliminary objection. It argued that the respondents lacked locus standi and that the action was statute-barred under section 2(a) of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria 2004. The Federal High Court dismissed the objection, held that the alleged suppression constituted a continuing injury, and granted the respondents’ reliefs. The Court of Appeal, Makurdi, affirmed that decision on 13 February 2014. INEC then appealed to the Supreme Court.

Issues

1. Whether the respondents had sufficient locus standi to institute the action.
2. Whether the action was protected from limitation by the continuing injury exception in section 2(a) of the Public Officers Protection Act.
3. Whether the lower courts were correct on the admissibility and use of the documentary exhibits, reliance on Oju Local Government v. INEC, the requirement for affidavit evidence, and the sufficiency of the evidence supporting declaratory reliefs.

Ratio Decidendi

The Supreme Court held that locus standi means the legal capacity to sue in order to enforce a legal right or protect a sufficient and justiciable interest. A claimant need not establish that the action will succeed; it is enough to disclose, in the originating process and supporting affidavit, a legally recognisable interest connected with the subject matter. The respondents’ unchallenged affidavit evidence showed that several of them were political representatives, former representatives or community leaders of the affected constituency. They therefore possessed sufficient interest to sue.

However, the Court held that the action was statute-barred. Section 2(a) of the Public Officers Protection Act requires an action against a public officer for an act done in the execution of a public duty to be commenced within three months of the act, neglect or default. The affidavit expressly stated that the Otukpa Constituency had been excised and suppressed in 1996, while the action was not filed until 25 October 2011—approximately fifteen years later.

The statutory exception for a “continuance of damage or injury” did not apply. Continuance of injury means the continuance or repetition of the legal wrong itself, not the continuing consequences or effects of a completed wrong. The excision and suppression of the constituency was a single, completed act in 1996. The subsequent absence of representation was merely the effect of that act. Since the respondents did not plead or aver facts establishing a continuing act, the lower courts were wrong to infer one.

Court Findings

The Court further held that the lower courts improperly raised and determined the question of continuing injury without giving the parties, particularly INEC, an opportunity to address it. A court may raise an issue suo motu where necessary, but it must invite counsel to make submissions before relying on that issue in its decision. Failure to do so amounted to a denial of fair hearing and justified appellate intervention.

The Supreme Court acknowledged that it ordinarily respects concurrent findings of fact by lower courts. Nevertheless, it may interfere where those findings are perverse, unsupported by the evidence or have occasioned a miscarriage of justice. The finding that the suppression was continuing had no basis in the respondents’ affidavit and was therefore perverse.

The Court explained that limitation statutes protect defendants from stale claims and prevent parties from being harassed long after the relevant act. The applicable calculation requires consideration of the date the cause of action accrued, the date the action was commenced and the limitation period prescribed by statute. Once the limitation defence is established, the court is deprived of jurisdiction to entertain the substantive claims.

Conclusion

The Supreme Court unanimously allowed the appeal, set aside the judgments of the Federal High Court and Court of Appeal, and struck out Suit No. FHC/MKD/CS/17/2012 as statute-barred and incompetent. The Court did not determine the substantive constitutional questions concerning the power to suppress or restore the Otukpa State Constituency. The parties were generally ordered to bear their own costs, although the lead judgment made no order as to costs.

Significance

This decision clarifies two important principles of Nigerian civil procedure. First, courts should not treat locus standi as an unnecessary technical obstacle where affidavit evidence establishes a genuine and justiciable interest. Secondly, the continuing-injury exception under the Public Officers Protection Act is narrow. A continuing disadvantage resulting from a completed administrative act will not, without more, extend the limitation period. The continuing wrong must itself be pleaded and proved. The case also reinforces the constitutional importance of fair hearing whenever a court introduces a decisive issue on its own initiative.