Legalpedia Citation: (2023-06) Legalpedia 24347 (FHC)

In the Court of Appeal

KANO JUDICIAL DIVISION

Thu Mar 16, 2023

Suit Number: CA/KN/44/2023

CORAM

Mohammed Baba Idris JCA

Usman Alhaji Musale JCA

PARTIES

SALE ADO ABDULLAHI

APPELLANTS

YUSHA’U IBRAHIM & ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant and 1st Respondent, both, contested the primary election conducted by the 3rd Respondent being members of the 3rd Respondent, for the purpose of selecting candidate of the 3rd Respondent for the Warawa State Constituency of Kano State House of Assembly.

At the trial court, the 1st Respondent claimed he polled the highest number of votes at the primary election and emerged the winner but the 3rd Respondent submitted the name of the Appellant to the 2nd Respondent as its nominated candidate for the election.

Aggrieved, 1st Respondent challenged the action of the 3rd Respondent and the trial Court (Federal High Court, Kano) affirmed the election of the Plaintiff (1st Respondent herein) as the candidate of 3rd Respondent for the Warawa State Constituency at the 2023 House of Assembly Election.

The Appellant was aggrieved by the decision hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø  Whether the affidavit evidence of the 1st Respondent justified the grant of the 1st Respondent reliefs as claimed on the face of the originating summons.

RATIONES DECIDENDI

UNLAWFUL SUBSTITUTION – ENFORCEMENT OF THE POWER OF THE UMPIRE (INEC) AGAINST UNLAWFUL SUBSTITUTION

What rather worries me is the fact that, the INEC rather obliges the intransigence of the Political Party, and accept persons and nominees submitted by the Party, which run counter to the persons/names that emerged as the winners, which it (INEC) monitored! By the new Electoral Act, INEC, in my opinion, is in a position to reject such imposition and sanction the political party that indulges in such brazen act of injustice or imposition.”

​I believe that strict enforcement of the power of the umpire (INEC) against unlawful substitution of candidates by political parties, and the readiness of the Court to interfere/intervene, where there is a breach or sidestepping of the Rules and Guidelines of Political Parties and Electoral Act, to impose candidate against the run of the game, will go a long way to curb this menace.

The era of the Court folding its arms or throwing its arms in frustration, that the selection of candidate is the private/domestic matter/affairs of Political Parties, appears not to be tenable any longer, in view of the Section 285(14) (a) of the 1999 Constitution, as amended, and the relevant Sections of Electoral Act, particularly, Section 84(14) of the Electoral Act, 2022. – Per I. G. Mbaba, JCA

INEC – THE WISDOM IN MANDATING INEC TO MONITOR PARTY PRIMARY ELECTIONS

…“The evidence of INEC (3rd Respondent), a neutral party, that monitored the conduct of the primary election of 23/5/2022, is what saved the day for the Appellant and for Justice, as it goes a long way to justify the wisdom in mandating the INEC to monitor party primary elections, as provided for in Section 84(1) of the Electoral Act. See the case of Amaechi Vs INEC (2008) LPELR-446 (SC), it was held: “Under Section 85 of the Electoral Act, 2006, it is mandatory that political parties inform INEC of the date and time of holding a convention or congress summoned for the purpose of nominating candidates for any of the elective offices under the Electoral Act, 2006. If parties were not to be bound by the results of their party primaries in the nomination of candidates at any level, why would it be necessary for Independent National Electoral Commission’s (INEC) representatives to be present at and monitor the proceedings of such congress? It seems that the obligation on the parties to inform INEC of such congresses was to ensure that INEC would know and keep a record of candidates who won at the primaries.” Per OGUNTADE, JSC. It is sad and, indeed, very sad, that some leaders of political parties still relish in their old mischievous practice(s) of undermining the results of their primary elections, and breaching their constitutions and laws, to impose person(s), not elected, and/or shortchanging the right person(s) who emerged at the primary elections. See the case of Aliyu Vs Namadi & Ors (supra). I think INEC (3rd Respondent) should go against such persons and prosecute them to check such vices.” – Per I. G. Mbaba, JCA

FRAUD – A PARTY MUST NOT BE ALLOWED TO PROFIT FROM HIS OR HER FRAUD

It there smacks of mischief, in my opinion, for Appellant to try to capitalize on the error. It would, therefore, be unconscionable, in my view, for the 3rd Respondent and Appellant to create that confusion/flaws in the Form for documentation of the result of the Warawa State Constituency election, and stay back to profit from the confusion/flaws they created! A party is not permitted to profit from his own wrongdoing. See the case of Alagbala & Ors Vs Adaraloye & Ors (2022) LPELR – 58742 (CA):

“It is trite that a party cannot benefit from his wrong. Equity, acting in personam, would not allow a party to benefit from his own iniquity. It insists that whoever comes to it or justice must do justice, and must not come to the temple of justice with dirty hands. Reliance is placed on PDP & ORS VS EZEONWUKA & ANOR (2017) LPELR-42563 (SC), TERIBA VS ADEYEMO (2010) LPELR-3143 (SC).” Per BANJOKO, JCA

See also Saleh Vs Christian Adabah & Ors (2017) LPELR – 41914 (SC), where my lord, Bage JSC, said:

“We are of the firm view that a party must not be allowed to profit from his or her fraud.’’ – Per I. G. Mbaba, JCA

DOCUMENT – INEC’S DOCUMENTARY REPORT OF ELECTION

Appellant had argued that the contents of a document (this time, Exhibit INEC 2 and A8 and Exhibits F and G), cannot be varied by oral evidence, but must be backed up by competent oral evidence; that failure of a party to produce documentary evidence to support evidence adduced, orally, which is founded on document, is fatal. Of course, that is the law, provided the documentary evidence itself is reliable and not wanting in credibility and factual accuracy, or not vitiated by fraud.

In the case of Manniru Z. Musa Vs INEC & Ors (2023) LPELR – 59683 CA, it was held that INEC’s documentary report of election, it monitored, when it listed wrong name as members of the Electoral Committee, was inconsequential, as that did not affect the substance and truth of the case admitted by the Party. We held:

…the apparent slip in the names of persons in the INEC Report, is inconsequential, in my view, as INEC Report was actually meant to confirm its monitoring of the Conduct of the election and that it was done, properly! – Per I. G. Mbaba, JCA

INEC – FOR A PARTY PRIMARY TO BE VALID, INEC HAS TO MANDATORILY OBSERVE

See also Buhari Vs PDP & Ors (2022) LPELR – 58490 CA; Muhammad Vs PDP & Ors (2022) LPELR – 58984 (CA); and PDP & Ors Vs OBIEKWE & Anor (2022) LPELR – 59292 CA, where it was held per Akinbami JCA:

“The law is settled that for a party primary to be valid, the INEC/2nd Cross-Respondent has to mandatorily observe, and monitor the nomination of the party’s candidate in line with the requirement of Sections 82 (2) (b) and 84 (1) of the Electoral Act, 2022. See MR. EMMANUEL ANDY NNAMDI UBA V CHIEF GEORGE MOGHALU & ORS (2022) LPELR -57876 (SC) 25-26…. It can be deduced from 1st Cross-Respondent’s depositions in his affidavit that the lower Court should invalidate, the Re-Run Primary of 06/06/2022, on the basis of INEC not monitoring same, he attempted to establish, before the Court that the INEC was notified of the Primary Election of 22/05/2022. 1st Cross-Respondent omitted to attach the referred Notice Exhibit (FBH1) to INEC. The inference l draw from omission is that both the primary election of 22/05/2022 and the Re-Run Primary of 06/06/2022 were not observed nor monitored by the INEC, for both Primary Elections of 22/05/2022 and 06/06/2022 to be valid in the eyes of the law. I am of the considered view that neither of the two primaries of the 1st Cross-Appellant held on 22/05/2022 and 06/06/2022, was valid in the eyes of the law.” – Per I. G. Mbaba, JCA

CASES CITED

STATUTES REFERRED TO

1.  Electoral Act, 2022
2. Electoral Act, 2006
3. Constitution of the Federal Republic of Nigeria 1999 (as amended)

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