HON. HARUNA ABUBAKAR MAGAJI V. HON. ABUBAKAR LADO AND 2 ORS

Legalpedia Citation: (2023-04) Legalpedia 72509 (SC)

In the Supreme Court of Nigeria

Wed Apr 5, 2023

Suit Number: SC.CV/352/2023

CORAM

Kudirat Motonmori Olatokunbo Kekere-Ekun JSC

Amina Adamu Augie JSC

Uwani Musa Abba Aji JSC

Helen Moronkeji Ogunwumiju JSC

Adamu Jauro JSC

PARTIES

HON. HARUNA ABUBAKAR MAGAJI

APPELLANTS

HON. ABUBAKAR LADO AND 2 ORS

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The Appellant’s claim is that he won the primary election conducted by the 2nd Respondent’s National Working Committee on 31/5/2022, for the Gurara/Tarfa/Suleja Federal Constituency, Niger State. This was supposedly conducted outside the Federal Constituency because violence had marred the election of the 27/5/2022 thereby making it impracticable to conduct the election within the Federal Constituency. He claimed that this was a recommendation by the Party’s Appeal Committee and it was approved by the Party’s National Working Committee. That surprisingly on 24/6/2022, the 2nd Respondent published names of its candidates for various political offices in Nigeria for the 2023 general elections, but his name was excluded from the list of names forwarded to the 3rd Respondent, but only the name of the 1st Respondent was forwarded.

The 1st Respondent’s on the other hand claimed he won the 2nd Respondent’s (APC) primary election organized and conducted by the National Working Committee of the APC, monitored by the 3rd Respondent (INEC), on 27/5/2022 at Suleja stadium within the Federal Constituency for Gurara/Tarfa/ Suleja Federal Constituency, Niger State, and his name was subsequently submitted to the 3rd Respondent as the candidate of the 2nd Respondent.

Due to the submission of the 1st Respondent’s name to INEC and the publication of same by INEC on 17th June, 2022 and 24th June, 2022 respectively that the Appellant instituted the suit before the trial Court. The trial Court therefore granted all the reliefs sought by the Appellant. Aggrieved, the 1^st Respondent (Appellant at the lower court) appealed and the said appeal was allowed and the decision of the trial court set aside. Aggrieved, the Appellant made the instant appeal.

 

HELD

Appeal dismissed

ISSUES

Ø Whether the Court of Appeal was wrong to have nullified the primary election of the 2nd Respondent for the Gurura/Tafa/Suleja Federal Constituency of Niger State held on 31st May, 2022 on the ground that same was conducted outside the Federal Constituency despite evidence that the earlier Primary Election was marred by violence?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – DUTY OF RESPONDENTS COUNSEL TO MOVE PRELIMINARY OBJECTION

It is the law that a Notice of Preliminary Objection can be incorporated in the Respondent’s brief or filed separately. Whichever method is adopted; the Respondent’s counsel has a duty to move same separately with the leave of Court. Where the Respondent’s counsel refuses, fails or neglects to move a Notice of Preliminary Objection, the objection would be deemed abandoned, even if the counsel is present in Court. See REGD. TRUSTEES, A.O.N. V. N.A.M.A. (2014) 8 NWLR (PT. 1408) 1; BEN V. STATE (2006) 16 NWLR (PT. 1006) 582, ONOCHIE V. ODOGWU (2006) 6 NWLR (PT. 975) 65. – Per Adamu Jauro, JSC

 

COURTS – DUTY OF COURTS TO WORK WITH FACTS PRESENTED TO THEM

Courts do not deal in speculation, rather they work with facts as presented before them. See UWAGBOE V. STATE (2008) 12 NWLR (PT. 1102) 621, AGBI V. OGBEH (2006) 11 NWLR (PT. 990) 65, OLANLEGE V. AFRO CONT. (NIG.) LTD. (1996) 7 NWLR (PT. 458) 29. It is disturbing that the learned trial Judge without any prompting from the parties speculated and concluded that the 2nd Respondent’s Appeal Committee must have deliberated on a date earlier than 1st June, 2023, when in fact, there was no evidence to that effect. Furthermore, making an unfounded assumption as the learned trial Judge did, reeks of descending into the arena of conflict, which our Judges have consistently been cautioned against. The Judge is the umpire and must not be seen to be conducting the cases for the parties or assisting them by filling any gaping holes in their cases. SANMI V. STATE (2019) 13 NWLR (PT. 1690) 551. SEE A.D.H. LTD. V. MIN., F.C.T. (2013) 8 NWLR (PT. 1357) 493, OSSAI V. WAKWAH (2006) 4 NWLR (PT. 969) 208. – Per Adamu Jauro, JSC

 

NOMINATING CANDIDATES – LIBERTY OF POLITICAL CANDIDATES IN NOMINATING THEIR CANDIDATES – WHETHER THIS LIBERTY OF POLITICAL PARTIES IS ABSOLUTE

It is now settled beyond peradventure that the choice of a political party’s candidate for an election is a matter within the internal affairs of that party and a Court should ordinarily not interfere with same, as it is not the function of the Court to select candidates for political parties. However, the liberties enjoyed by political parties in selecting/nominating their candidates are not absolute. In the process of nominating their candidates, they have a duty to comply with the Constitution of the Federal Republic of Nigeria, the Electoral Act, other statutes as well as their Constitution and Guidelines. Where they have conducted their nomination exercise in breach of extant laws or their own instruments, the Court will be entitled to interfere in line with Section 84(14) of the Electoral Act, 2022.

See NWITE V. PDP & ORS (2022) LPELR-59192 (SC), UBA V. MOGHALU & ORS (2022) LPELR – 57876 (SC), UGWU & ORS V. PDP & ORS (2015) LPELR – 24352 (SC) PDP & ANOR V. SYLVA & ORS (2012) LPELR – 7814 (SC), UZODINMA V. IZUNASO (2010) VOL. 5 (PT. 1) MJSC 27.

Per Adamu Jauro, JSC

PRIMARY ELECTION – PROCEDURE FOR PRIMARY ELECTION

Section 84(5)(c)(i) and (ii) of the Electoral Act provides as follows:

“A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined –

(c) in the case of nominations to the position of a Senatorial candidate, a Member of the House of Representatives and a Member of a State House of Assembly, the political party shall, where it intends to sponsor candidates –

(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for aspirants of their choice in designated centres on specified dates, and

(ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.”

The procedure outlined by the above provision is clear. After an indirect primary election for nominations to the position of a Senatorial candidate, a Member of the House of Representatives or a Member of a State House of Assembly has been held by a political party, all that is left for the party to do is to forward the name of the successful aspirant to INEC. The political party does not have a discretion as to whether to cancel the primary election or schedule a rerun as long as the primary election was validly held in accordance with extant laws as well as the Constitution and Guidelines of the political party.

See the case of KOKO V. KOKO & ORS (2023) LPELR-59773 (SC) wherein Garba, JSC held in his concurring judgment thus:

“The 2nd Respondent, by the above provisions, has no discretion, howsoever, to tamper with the outcome of the primary election for the sole purpose of changing the result or outcome of the primary election in favour of any other aspirant or person/s who did not participate in the said primary election. Once primary election was conducted in compliance with the Electoral Act and party Guidelines and a winner emerged and was duly declared the winner, it would no longer be within the province of the internal affairs of the party to interfere with the outcome or result of the primary election and cannot purport to cancel the concluded primary election or the result duly declared by the committee that conducted the said primary election. The conduct of the said primary election and outcome or result declared can only be validly challenged in Court as provided for in Section 84(14) of the Electoral Act, 2022, by an aspirant who participated in the primary election. No provision of the 2nd Respondent’s Constitution and/or Guidelines for Party Primaries is shown to exist allowing, permitting or granting the 2nd Respondent the unbridled power to cancel the primary election conducted in compliance with the law or the result duly declared for the said election.”

Per Adamu Jauro, JSC

PRIMARY ELECTION – VENUE OF PRIMARY ELECTION FOR THE POSITION OF A MEMBER OF THE HOUSE OF REPRESENTATIVES

Both the provisions of the Electoral Act and the 2nd Respondent’s Guidelines reproduced supra clearly provide for the venue of a primary election for the position of a Member of the House of Representatives. The law is settled that where a statute has a laid-down procedure for doing something, compliance with that procedure becomes a condition precedent for doing that thing. Whenever there is a specific statutory provision regulating the procedure for doing a particular act, that procedure must be followed and no other must be employed in the performance of the act except the one prescribed by statute. See MOBIL PRODUCING (NIG.) UNLTD. V. JOHNSON (2018) 14 NWLR (PT. 1639) 329, AMASIKE V. THE REGISTRAR GENERAL, C.A.C. & ANOR (2010) LPELR – 456 (SC); OKEREKE V. YAR’ADUA & ORS (2008) LPELR – 2446 (SC).

Furthermore, the said provisions are couched in mandatory terms; they do not admit of permissiveness, hence they must be obeyed. By both provisions, a primary election of the 2nd Respondent for the nomination of its candidate for a seat into the House of Representatives must be held within the concerned Federal Constituency.

Per Adamu Jauro, JSC

PRIMARY ELECTIONS – VENUE OF PRIMARY ELECTIONS FOR THE POSITION OF A MEMBER OF THE HOUSE OF REPRESENTATIVES OR THE SENATE

In Alagbaso’s case, prior to the conduct of its primary election for Imo West Senatorial District, the 2nd Respondent (PDP) applied to INEC for the primary election to be held in Owerri, outside the relevant Senatorial District. INEC granted the request, and the election held in Owerri as planned. The Appellant who lost the primary election approached the trial Court, praying for the nullification of the primary election, inter alia, on the ground that it was held outside Imo West Senatorial District, in contravention of the Electoral Act and the 2nd respondent’s Guidelines. Both the trial Court and the Court of Appeal found against the 1st Respondent. In overturning the decision of the Court of Appeal, this Court held that the provisions of the Electoral Act leave no room for the primary election to be held outside the relevant Senatorial District. In the lead judgment, my learned brother, Ogunwumiju, JSC held thus:

“Since Section 84(5)(c)(i) of the Electoral Act is not ambiguous, resort must be had to the literal rule to ensure strict observance. Nothing can be added to a law by utilizing the golden rule of interpretation of statutes to expand the law beyond the intendment of the legislature. When a provision in a statute is clear, the Court’s power at construing it is limited. See ALH. ADO IBRAHIM v. ALH MAIGIDA LAWAL (2015) 6 SCNJ 1. You can only have recourse to other canons of interpretation when the law is not clear enough. When provisions in a statute appear harsh in practice, it is not the function of the Courts to bend backwards to sympathize with affected parties by giving it a soothing interpretation. MOHAMMED ABACHA v. FRN (2014) ISCNJ 37, KRAUSS THOMPSON v. NIPSS (2004) 17 NWLR Pt. 901 Pg. 44 (SC) … There is no argument that the guidelines for primaries of the 2nd Respondent state specifically that the primaries should be held in the Senatorial District. There is also no doubt that Section 84(5)(i) of the Electoral Act provides that the Primary Election under consideration should have been held within the Senatorial District. Therefore both the statute and the party guidelines had at its heart, the policy to hold the primary election at a location near the people of the constituency. The statutory provision made it mandatory by using the word ‘shall’. If it had the word ‘shall’ but went further to put a proviso or an exception, then the word ‘shall’ might be construed to be merely directory … There is no insensitivity here to the general insecurity in some parts of Nigeria. The security situation was in existence long before both the Electoral Act, 2022 and the party guidelines for 2022 primaries were promulgated and published respectively. In spite of the pre-existing security situation, the National Assembly enacted a law which mandated the parties to hold primaries anywhere in the senatorial district.”

In my concurring judgment, I had the following contribution to make on the subject:

“No Court has the jurisdiction to twist the meaning of the words used in a statute in order to fit into its own wishes or that of the parties. Even where the law appears strict, it is not for the Court to embark on what is commonly referred to as ‘judicial legislation’ by stretching the meanings of the words used and give them an entirely different colouration from what was intended by the legislature. The duty to make laws or amend them rests squarely and solely with the legislature. The judicial arm of government has no such duty. See KASSIM V. ADESEMOWO (2021) 18 NWLR (PT. 1807) 67, UGBA V. SUSWAM (2013) 4 NWLR (PT. 1345) 427, DAPIANLONG & ORS V. DARIYE & ANOR (2007) LPELR – 928 (SC), UNIPETROL NIG. PLC. V. EDO STATE B.I.R. (2006) LPELR – 3398 (SC), COTECNA INT’L LTD. V. IVORY MERCHANT BANK LTD (2006) LPELR – 896 (SC), IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) LPELR – 1408 (SC).

Section 84(5)(c)(i) of the Electoral Act, 2022 which the trial Court was among other instruments and statutory provisions, called on to interpret is unequivocal as to where the primary election for the selection of a political party’s senatorial candidate should hold. The section makes no exception for the holding of such a primary election outside the Senatorial District. By attempting to create an exception to the provision, the two lower Courts read into the law what the legislature did not include therein. Both Courts clearly went beyond the scope of their adjudicatory and interpretative powers/duties.”

Similarly, in SC/CV/1401/2022 BETWEEN: MUKTARI ADAMU YERIMA V. DR MIDALA USMAN BALAMI & 2 ORS (UNREPORTED) delivered on 6th January, 2023, the 2nd Respondent therein (PDP) held its primary election outside the relevant Federal Constituency, the Askira/Uba Federal Constituency and gave the excuse of insecurity as its reason for doing so. This Court, in that case, was faced with interpreting provisions similar to those now under consideration. In my concurring judgment, I stated thus:

“The above provision being couched in mandatory terms are meant to be obeyed by political parties who have the duty to conduct primary elections. They cannot be disobeyed by political parties either alone or in conjunction with anyone or for whatever reason as the Electoral Act did not create any exception thereto. When such mandatory provisions are disobeyed, it is the duty of the Court to reject such wayward actions by giving effect to the enactment in question. See CIL RISK & ASSET MGT. LTD. V. EKITI STATE GOVT. (2020) 12 NWLR (PT. 1738) 203, SHETTIMA V. GONI (2011) 18 NWLR (PT. 1279) 413, INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 427.

Furthermore, it is settled that political parties are bound by statutes and their own constitutions and guidelines which they have a duty to obey. See AKPATASON V. ADJOTO & ORS (2019) LPELR – 48119 (SC), PDP V. SYLVA (2012) 13 NWLR (PT. 1316) 85, UZODINMA V. IZUNASO (NO. 1) (2011) 17 NWLR (PT. 1275) 30. The flagrant breach of the Electoral Act and the 2nd Respondent’s Constitution will therefore not be tolerated.”

See also MATO V. HEMBER (2018) 5 NWLR (PT. 1612) 258.

It is clear that the facts of the above-referenced cases are similar to those in the instant case, hence, the doctrine of stare decisis dictates that this Court abides by those decisions. See MBAKA V. MBAKA (2022) 17 NWLR (PT. 1860) 531, YANTABA V. GOV., KATSINA STATE (2022) 1 NWLR (PT. 1811) 259, STATE V. YANGA (2021) 5 NWLR (PT. 1769) 375, AMAECHI V. I.N.E.C. (2008) 5 NWLR (PT. 1080) 227, N.E.P.A. V. ONAH (1997) 1 NWLR (PT. 484) 680.

Per Adamu Jauro, JSC

PRIMARY ELECTION – EFFECT OF VIOLATION OF PROVISIONS REGARDING VENUE TO HOLD PRIMARY ELECTION

The settled position of this Court is that any party in violation of Section 84(5)(c)(i) of the Electoral Act and the guidelines of the political party regarding venue to hold a primary election must be visited with the sanction in the said Section 84(13) of the Electoral Act, 2022. – Per H. M. Ogunwumiju, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act 2022
3. All Progressives Congress Constitution
4. All Progressives Congress Guidelines of the National and State Houses of Assembly Primaries
5. Supreme Court Rules

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