CORAM

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KUDIRAT MOTONMORI KEKERE-EKUN

UWANU MUSA ABBA AJI

MOHAMMED LAWAL GARBA

IBRAHIM MOHAMMED MUSA SAULAWA

ADAMU JAURO

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PARTIES

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ALL PROGRESSIVES CONGRESS (APC)

APPELLANTS 

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1. MOHAMMED UMAR JEGA

2. KABIRU LABBO JEGA

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, JUDGEMENT, ELECTION PETITION, EVIDENCE

 

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SUMMARY OF FACTS

The Appellant and 1st Respondent are members of the same political party (2nd Respondent). Both of them were candidates for the BALI/GASSOL Federal Constituency Taraba State.

The 2nd Respondent conducted primary elections where he was returned and declared winner while the Appellant was waiting for primary elections to be conducted.

The trial court passed judgment in favor of the Appellant and agreed that indeed the purported primary election was a sham. The 1st Respondent was dissatisfied and appealed the decision. The Court of Appeal allowed the Appeal and ordered that his name be returned as winner and the candidate of the 2nd Respondent (APC) for in the forthcoming 2023 general election.

The instant appeal is a fall-out of the judgment of the Court of Appeal, Yola Judicial Division.

 

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HELD

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Appeal Allowed

 

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ISSUES

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Whether the appellant succeeded in proving his case that the 2nd respondent failed to conduct a primary election in respect of bali/gassol federal constituency on may 27th, 2022 or at any other date.

Whether the failure of the 2nd respondent political party to comply with the mandatory provisions of section 82 of the electoral act will not vitiate the primary election conducted in breach thereof.

Whether the court below was right in reversing the decision of the federal high court, jalingo which granted consequential reliefs to the plaintiff/appellant.

 

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RATIONES DECIDENDI

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GROUNDS OF APPEAL – WHEN IT IS INELEGANT/BAD – CONDUCT OF COURTS

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It is apparent and obvious that some of the grounds and particulars of appeal appear windy and narrative because of the excepts and quotations of some parts of the judgment of the trial Court carried out by the 1st Respondent as his grounds and particulars of the appeal. Nevertheless, do all these constitute incompetence of grounds and particulars of appeal?

Per PETER-ODILI, JSC, in WAZIRI & ANOR V. GEIDAM & ORS (2016) LPELR- 40660(SC) (PP. 17-19 PARAS. A) held: That said, I would not leave it unsaid that clearly perusing the said particulars of the said Ground 2, there is verbosity, inelegance, even a degree of untidiness not to talk of a showcase of repetitiveness leading to their being properly classified as argumentative. However, such presentations cannot be used for punitive measure of a striking out of Ground 2 as it would mean visiting the error or inelegance of counsel on a hapless litigant. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Hence, bad or defective particulars in ground of appeal would not, necessarily, render the ground itself incompetent.

Furthermore, in DAKOLO V DAKOLO (2011) 16 NWLR (PR. 1272) 22 AT 53, Adekeye, JSC, stated the position of the Court thus: Grounds of appeal are to be differentiated from their particulars. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the Appellant his right of appeal when on the face of the ground of appeal notable issue arises for consideration by the Court… the principal duty of the Court is to do justice. The grounds of appeal and the particulars in the instant appeal might appear to be argumentative and repetitive; they equally raised triable issues which would sustain the appeal. “The Supreme Court will always make the best that it can, out of a bad or inelegant ground or brief, in the interest of justice. In the instant case, although the grounds were inelegantly couched and prolix, the substances of the Appellants’ complaints were clear, and were against the ratio of the judgment of the Court of Appeal”. See DAKOLO & ORS V. DAKOLO & ORS (2011) LPELR – 915; (2011) 16 NWLR (PT. 1272) 22. Similarly, Nweze JSC had in OMISORE V AREGBESOLA (2015) 15 NWLR (PT. 1482) 205 AT 257 stated thus: The answer to the objectors’ invitation is predictable. The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to grounds of appeal with the fastidious details prescribed by the rules of this Court that would render such as incompetent. That is, particularly so where sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded. Although the Appellant is not urging that all the grounds and particulars of the 1st Respondent’s Notice of Appeal be rendered incompetent, even as worse as this can be, some of the competent grounds and particulars can save and redeem the other inelegant, argumentative and bad ones in the interest of substantial justice. I cannot throw away the baby with the bath water! …Even in the worst case and for substantial justice, an omnibus ground of appeal that is relevant and connected can sustain an appeal. See LAGGA V. SARHUNA (2008) 16 NWLR (PT.1114) AT 482 PARA A. – Per U. M. Abba Aji, JSC

 

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ABUSE OF COURT PROCESS – THE NEED FOR SRONG EVIDENCE

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The allegation of abuse of Court process is a serious one that may necessitate the striking out of a Court process if found to be so. Thus, it cannot be speculated upon but ought to come by strong evidential or documentary proof for the Court to be convinced. The facts constituting the abuse must be brought before the Court by way of affidavit and documentary evidence. – Per U. M. Abba Aji, JSC

 

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FACTS – WHEN NOT DENIED

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Every allegation of fact, if not denied specifically or by necessary implication shall be taken as established at the hearing. See Per IGUH, J.S.C, in OSHODI & ORS V. EYIFUNMI & ANOR (2000) LPELR-2805(SC) (PP. 55 PARAS. – Per U. M. Abba Aji, JSC

 

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WITHDRAWAL/ DISCONTINUANCE OF ACTION

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By Order 50 Rules 2(1) and 3(1) respectively of the Federal High Court (Civil Procedure) Rules, 2019, the filing of Notice of Withdrawal or Discontinuance of action is not a desideratum or necessity… In fact, discountenance is allowed without the leave of Court not later than 14 days after service. – Per U. M. Abba Aji, JSC

 

 

 

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ABUSE OF JUDICIAL PROCESS – BURDEN OF PROOF

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Abuse of judicial process manifests itself largely in the multiplicity of actions on the same subject matter between the same parties. It is not the existence of the right to institute these actions that is protested against; rather, it is the manner of exercise of this right and the purpose of doing the same that is abhorred. The term is generally applied to a proceeding which is lacking in bona fide. It has a sting of malice. It is trite that a party complaining about abuse of Court process must go further to establish that the suits were motivated mala fide. See CENTRAL BANK OF NIGERIA V. AHMED (2001) 11 NWLR (PT.724) 369, AMAEFULE V STATE (1988) 2 NWLR (PT 75) 156, particularly Per OKORO, JSC, in NWEKE V. FRN (2019) LPELR-46946(SC) (Pp. 22-25 PARAS. E-E). – Per U. M. Abba Aji, JSC

 

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PROCEEDING – POWER OF COURTS TO FORMULATE/FRAME ISSUES

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It must be noted that the Court has the power and discretion to formulate or frame issues and cannot be said to do so suo motu. A Judge has the right in our adjectival law to use particular words or phrases, which, in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu. A Judge can only be accused of raising issue suo motu if the issue was never raised by any of the parties in the litigation.

A Judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. In other words, the Court of Appeal cannot be accused of raising issue suo motu if the issue was canvassed at the trial or on appeal. See Per TOBI, JSC, in ENEKWE V. INT’L MERCHANT BANK OF NIG LTD. & ORS (2006) LPELR-1140(SC) (PP. 25 PARAS. A). – Per U. M. Abba Aji, JSC

 

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APPEAL – POWER OF APPELLATE COURTS TO FORMULATE ISSUES

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“There is no disputing the fact that an appellate Court has the right, indeed duty, where appropriate to formulate issue(s) for the determination of an appeal particularly where it is of the opinion that the issue(s) as formulated by learned Counsel does/do not deal with the substantive issue in controversy in the appeal provided the issue(s) is/are consistent with the ground(s) of appeal filed in the appeal….” See Per ONNOGHEN, JSC, in YADIS (NIG) LTD V. GREAT NIGERIA INSURANCE COMPANY LTD (2007) LPELR-3507(SC) (PP. 19 PARAS. E). – Per U. M. Abba Aji, JSC

 

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PROCEDURE – PRESUMPTION OF REGULARITY

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In ONDO STATE UNIVERSITY & ANOR V. FOLAYAN (1994) LPELR-2673(SC) (PP. 34 PARAS. E), this Court, Per UWAIS, J.S.C, held that “there is a presumption of regularity when an official act is shown to have been done in a manner consistent with the procedure laid down or where the officer performing the function did so in a public capacity”. – Per U. M. Abba Aji, JSC

 

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EVIDENCE – PROBATIVE VALUE

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When two documents are conflicting or disputed, the Court must weigh to see which one has more probative value than the other before preferring one against the other in the absence of calling oral evidence. – Per U. M. Abba Aji, JSC

 

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DOCUMENTS – TO DETERMINE IF TWO DOCUMENTS ARE CONFLICTING

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In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the Court. This is because where, for example, the conflicts in affidavits are not material to the case before the Court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the Court, the need to call oral evidence to resolve the conflicts would not arise. See Per AKINTAN, JSC, in LSDPC V. ADOLD STAMM INTERNATIONAL (NIG) LTD & ANOR (2005) LPELR-1746(SC) (PP. 16 PARAS. B), FALOBI V. FALOBI (1976) 9-10 SC 1; OKUPE V. F.B.I.R. (1974) ALL NLR 314 (REPRINT); GARBA V. UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT. 18) 550; AND L.S.D.P.C. V. ADOLD STAMM INT. LTD. (1994) 7 NWLR (PT. 358) 545. – Per U. M. Abba Aji, JSC

 

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PARALLEL PRIMARIES – WHO AN ASPIRANT IS This Court, Per NGWUTA, JSC, in YARDUA & ORS V. YANDOMA & ORS (2014) LPELR-24217(SC) (PP. 82-83 PARAS. B), held:

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The primary elections from which the party’s candidates emerge are conducted by the National Executive Committee of the party. As often happens, there may be a parallel primaries conducted by the State Executive Committee of the political party. In the case of nomination for the membership of the National or State Assembly, if there are two parallel primary elections, as in the cases from which these appeals arose, only a person who took part in the primary elections conducted by the National Executive Committee of the party is an aspirant. Anyone who takes part in the primary election conducted by a State organ of the party is not an aspirant and cannot approach the Court for redress for he has no locus standi to ask for redress. – Per U. M. Abba Aji, JSC

 

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APC PRIMARY ELECTIONS – NATIONAL WORKING COMMITTEE

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By the provisions of the Constitution of the Appellant, it is the National Working Committee of the party that possess and has the authority or power to conduct primary elections for selection/nomination of candidates for elections into States and Federal Legislatures. The Appellant is bound to comply with the provisions of its Constitution and Guidelines in the conduct of primary elections. See Uzodinma vs Izuraso (No. 2) (2011) 17 NWLR (Pt. 1275) 30, Lau vs. PDP (2018) 4 NWLR (Pt. 1606) 60 at 123, Musa vs. Umar (2020) 11 NWLR (Pt. 1735) 213, Jegede vs. INEC (2021) 14 NWLR (Pt. 1797) 409, Uba vs. Moghalu (2022) 15 NWLR (Pt. 1853) 271 at 311-312. – Per M. L. Garba, JSC

 

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PRIMARY ELECTION – STATE CHAPTER OF A PARTY

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It was also held in AKPATASON V. ADJOTO (supra) relying on the decision in EMENIKE V. PDP (2012) 12 NWLR (PT. 1315) 556, that the State Chapter of a political party cannot conduct a primary election and any primary so conducted is illegal. – Per Adamu Jauro, JSC

 

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PRIMARY ELECTION – ILLEGAL PRIMARY ELECTION CANNOT PRODUCE A CANDIDATE

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The outcome of an illegal primary election cannot produce a candidate. Ex nihilo nihil fit – from nothing comes nothing; you cannot base the emergence of a candidate on an illegally conducted primary, both will collapse. – Per Adamu Jauro, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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Electoral Act 2022

APC Guidelines for the nomination of candidates for the 2023 General Elections

 

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