Legalpedia Citation: (2023-03) Legalpedia 48323 (SC)

In the Supreme Court of Nigeria

Thu Mar 16, 2023

Suit Number: SC.CV/344/2023

CORAM

Kudirat Motonmori Olatokunbo Kekere-Ekun SCN

Amina Adamu Augie SCN

Helen Moronkeji Ogunwumiju SCN

Adamu Jauro SCN

Emmanuel Akomaye Agim SCN

PARTIES

ENGR. BENJAMIN IORLUMUN AKAAKAR JIME

APPELLANTS

HON. HERMAN IORWASE HEMBE 2. LABOUR PARTY 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

At the trial Court, the Appellant as plaintiff claimed that the 1st Respondent was not qualified to be fielded as the 2nd Respondent’s Gubernatorial candidate in the 2023 General Election for the governorship of Benue state because he was simultaneously nominated at the primary elections conducted by the All Progressive Congress (APC) on 28/5/2022 and the re-run election on the 9/6/2022, as well as that of the 2nd Respondent, conducted on 9/6/2022 thereby flagrantly violating the provision of Section 35 of the Electoral Act, 2022 and Article 9(1)(i) of the 2nd Respondent’s Constitution. The Appellant in addition contended that as at the time the 2nd Respondent’s primary election was conducted, the 1st Respondent was still a subsisting member of the APC. He also deposed that the 1st Respondent employed thugs and disrupted the conduct of the 2nd Respondent’s primary election which constituted a breach of Article 23 and 28 (8) of the 2nd Respondent’s Constitution as well as Section 92(5) of the Electoral Act.

The 1st Respondent argued that he had sufficiently proved that he had resigned from the APC before the conduct of the primary election.

The trial Court held that there is no evidence of double nomination by two parties established against the 1st Respondent and that the Appellant failed to prove the allegation that the 1^st Respondent employed thugs to disrupt the primary election of the 2^nd Respondent. Consequently, the trial Court dismissed the Appellant’s suit. On appeal, the Court below (Court of Appeal) dismissed the Appellant’s appeal for lacking in merit.

The Appellant being dissatisfied with the decision of the lower Court appealed to this Court.

HELD

Appeal dismissed

ISSUES

1. Whether the Court below was right to hold that the Appellant did not prove that the 1st Respondent participated simultaneously in the Gubernatorial primaries of the APC and the 2nd Respondent and was nominated by both parties to INEC to stand for the Gubernatorial Election

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN OF PROOF WHEN THERE IS AN ALLEGATION OF DOUBLE NOMINATION OR PARTICIPATION

There is no doubt that the Appellant on the issue of fact that the 1st Respondent participated in the primaries of the two parties and was nominated by two parties must succeed on the strength of his own case as he who asserts must prove. See NYESOME WIKE v. PETERSIDE (2016) 7 NWLR Pt. 1512 Pg. 535.  – Per H. M. Ogunwumiju, JSC

NOMINATION’, ‘CANDIDATE’ AND ‘KNOWINGLY’ – MEANING OF THE WORDS ‘NOMINATION’, ‘CANDIDATE’ AND ‘KNOWINGLY’ – DIFFERENCE BETWEEN PARTICIPATION AND NOMINATION

My Lord, facts are the fountainhead of law. It is apparent that the Appellant has misconceived the grammatical and legal meaning of participation and nomination.

My Lords, Section 35 of the Electoral Act contains certain keywords in the provision in relation to the facts of this case. They are “Nomination”, “Candidate” and “Knowingly”.

​Section 152 of the Electoral Act defines the word Candidate as “a person who has secured the nomination of a political party to contest an election for any elective office.”

The word nomination as defined by the Court of Appeal in NWAMBAM v. UGOCHIMA & ORS (2010) LPELR-4643 (CA) PP. 38-39 Paras F-B is:

“…the words ‘submission of a candidate’s name’ or ‘nomination’ of a candidate for most of the times even in election matters tend to retain only their grammatical meanings. Thus, ‘nomination’ is said to be the act of suggesting or proposing a person by name to an election body as a candidate for an elective office. See ARARUME V. INEC (2007) 9 NWLR Pt. 1038 Pg. 127 at 162.”

I adopt that legal definition as aptly put by the Court of Appeal in NWAMBAM v. UGOCHIMA & ORS (Supra).

​The word “knowingly” simply means “in full awareness or consciousness; deliberately”.

My Lords, there is a vast difference between participation at the primaries and being actually nominated by the party. The processes are quite different. With participation, the aspirant collects the Expression of Interest Form which he may submit. After submission and screening, the aspirant is allowed by the party to participate in the primary election. If he wins the primary organized by the National Working Committee of his party or the body entitled by the Guidelines of the party to organize the election, he would, thereafter be given the Nomination Forms EC-09 to fill and the party would thereafter submit same to INEC.  – Per H. M. Ogunwumiju, JSC

 

EVIDENCE – EVIDENCE OF NOMINATION AND SPONSORSHIP OF A CANDIDATE

In KUBOR v. DICKSON (2013) ALL FWLR Pt. 676 Pg. 392 at 426 E-F, Onnoghen JSC (later CJN) held as follows:

“Evidence of nomination and sponsorship of a candidate by a political party lies in the declaration of the winner of the party’s primary election conducted to elect the party’s candidate for the general election in question coupled with the political party forwarding the names of the said elected candidate to the 3rd Respondent as its nominated candidate for the election.”

See also NWOSU v. APP (2019) LPELR- 49206.

I agree with the Court below when it held on page 754-755 of the Record as follows:

“In the instant case, while the facts clearly show that the 1st Defendant has been elected and his name has been forwarded by the 2nd Defendant to the 3rd Defendant (INEC) as its (2nd Defendant) candidate for the Governorship Election in Benue State in 2023, same cannot be said in respect of the All Progressives Congress (APC). What the Plaintiff did is to simply put before the Court facts and documents which suggest that the 1st Defendant participated in the primary election conducted by the APC to elect its Governorship candidate in Benue State for the same election. From the documents exhibited before the Court by the Plaintiff, the 1st Defendant was not the winner of the APC primary election. There is also no proof that his name has been forwarded by the APC to the 3rd Defendant as its (APC) candidate for the same position in the same election. Therefore, it cannot be said that the APC also nominated the 1st Defendant as its Governorship candidate in Benue State in the 2023 general election.” – Per H. M. Ogunwumiju, JSC

PRIMARY ELECTIONS – POSSIBILITY OF PARTICIPATING IN THE PRIMARY ELECTIONS OF TWO POLITICAL PARTIES

An aspirant cannot participate in the primaries of two political parties as most political parties in their constitution and guidelines provide that belonging to another political party automatically results in cessation of membership. – Per H. M. Ogunwumiju, JSC

SECTION 35 – EFFECT OF SECTION 35 OF THE ELECTORAL ACT

Section 35 does not stop an aspirant from participating in two primary elections of one political party. A candidate cannot be nominated by his party for different elective posts at the general election. Such participation by a candidate in two primaries of the same party is not ideal as held in HDP v. INEC (2009) 3 SCNJ 45 but it is not forbidden by law. It is not the duty of the Court to encourage practices that do not support democratic principles, but it is also not the duty of the Court to deliberately misapply the law in order to uphold moral democratic principles outside the contemplations of the legislation. – Per H. M. Ogunwumiju, JSC

CONCURRENT FINDINGS – CONDUCT OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACTS

This Court will not upset concurrent findings of fact unless they have caused a miscarriage of justice due to perversity. There is no reason to set aside the concurrent findings of fact of the two lower Courts. This is exactly what the Supreme Court has refrained from doing in instances where it is presented with concurrent findings of fact and thus will not interfere with such findings. See OKOLI v. MORECAB FINANCE (NIG) LTD (2007) 14 NWLR Pt. 1053 Pg. 37, SUNDAY v. STATE (2018) 1 NWLR Pt. 1600 Pt. 251, WOLUCHEM v. GUDI (1981) 5 SC 291, OVERSEAS CONSTRUCTION CO (NIG) LTD v. CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR Pt. 13 Pg. 407, ADEYE v. ADESANYA (2001) 6 NWLR Pt. 708 Pg. 1. – Per H. M. Ogunwumiju, JSC.

NOMINATION – WHAT CONSTITUTES NOMINATION – EVIDENCE OF NOMINATION AND SPONSORSHIP OF A CANDIDATE

The nomination of a candidate occurs after a political party has conducted its primaries or holds a congress to select its candidate to contest for a particular elective office. Section 84 of the Act provides for the different modes by which a candidate may emerge. It also provides that the name of the nominated candidate shall be submitted to INEC as the party’s flagbearer for the particular office in contention.

 

In Kubor vs Dickson (2013) All FWLR (Pt.676) 392 @ 426 E – F, cited by learned counsel for the 1st Respondent, this Court held: “Evidence of nomination and sponsorship of a candidate by a political party lie in the declaration of the winner of the party’s primary election conducted to elect the party’s candidate for the general election in question coupled with the political party forwarding the names of the said elected candidate to the 3rd respondent as its nominated candidate for the election.”In the instant case, the burden was on the Appellant, who sought declaratory reliefs, to prove that the 1st Respondent knowingly allowed himself to be nominated by more than one political party. He therefore had the burden of proving both the double nomination and the fact that the 1st Respondent knowingly allowed himself to be so nominated.

There is no doubt, from the evidence before the trial Court that the 1st Respondent moved from party to party in search of a place to perch in order to secure a nomination for the 2023 Gubernatorial election in Benue State. While such an act might have moral implications, there is no provision in the Electoral Act that precludes a candidate from participating in more than one primary. What is forbidden is his nomination by more than one political party at the same time and to his knowledge. – Per K. M. O. Kekere-Ekun, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Labour Party Constitution
4. Labour Party Guideline for the conduct of Gubernatorial Primary election
5. INEC Regulations for the conduct of Political Party Primary Elections
6. Evidence Act, 2011

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