JABIRU YUSUF YAU-YAU V. ALL PROGRESSIVES CONGRESS & ORS
March 19, 2025USENI V. ATTA & ORS
March 19, 2025Legalpedia Citation: (2023-02) Legalpedia 16807 (SC)
In the Supreme Court of Nigeria
Holden at Abuja
Wed Feb 1, 2023
Suit Number: SC.CV/1564/2022
CORAM
KUDIRAT MOTONMORI KRKRRE-EKUN
IBRAHIM MOHAMMED MUSA SAULAWA
ADAMU JAURO
TIJJANI ABUBAKAR
EMMANUEL AKOMAYE AGIM
PARTIES
CHIEF DAVID KENTE
APPELLANTS
SENATOR EMMANUEL BWACHA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. ALL PROGRESSIVES CONGRESS (APC)RESPONDENT(S)
RESPONDENTS
AREA(S) OF LAW
APPEAL, PRACTICE AND PROCEDURE, ELECTION PETITION, CONSTITUTIONAL LAW, EVIDENCE
SUMMARY OF FACTS
The Appellant was the plaintiff at the trial Court. His case was that he purchased an Expression of Interest Form for the purpose of contesting the Governorship of Taraba State on the platform of the APC (3rd Respondent).
The election was rescheduled to hold on 26th May 2022. The 3rd Respondent, through its National Working Committee, approved the indirect mode of selecting its candidates in all the States of the Federation except three. However, two days before the scheduled primary, news filtered in that the mode of election had been changed to direct primary.
To avoid a breakdown of law and order at the venue, on the 27th may 2022, the Police intervened and invited all aspirants to the State Command of the Nigeria Police Force in Taraba State According to the Appellant, there was no agreement between the parties on the mode of conducting the election. At a press conference late on 26th May 2022, the Chairman of 3rd Respondent’s Electoral Committee announced that the election had not been conducted due to unresolved issues.
Surprisingly, on 27th May 2022, the said Chairman announced at another press conference that the election had held and that the 2nd Respondent was elected and returned as the candidate of the party.
The appellant took the matter to court and the trial court in her judgment ordered the conduct of fresh election within 14 days. The 2nd Respondent appealed against this judgment and the appeal was allowed setting aside the judgment of the trial court.
Aggrieved, the Appellant has filed the instant appeal.
HELD
Appeal Allowed
ISSUES
1. Preliminary Objection
2. Whether the Court below was right when it held that the Appellant’s motion filed on the 10th November, 2022 which raised fundamental questions was incompetent having been filed out of the time prescribed by the Electoral Judicial Proceedings Practice Direction, 2022.
4. Whether the Court below was right when it failed in its duty to resolved the case of the Appellant which pertains to non-compliance of the 3rd Respondent’s Governorship Primary Election with the provisions of Section 84(4) of the Electoral Act, 2022.
5. Whether the learned Justices of the Court below erred in law when they relied on the 1st Respondent’s explanation to the Chairman’s press conference to set aside the decision of the trial Court that no Gubernatorial Election was conducted in Taraba State, despite the 1st Respondent having failed to controvert the same evidence before the trial Court. (Ground 8).
RATIONES DECIDENDI
APPEAL – OBITER – CANNOT BE THE SUBJECT OF APPEAL
As stated by this Court in the case of Ngige Vs Obi (2006) 14 NWLR (Pt, 999) 1 @ 164 A-C, cited by learned counsel for the Appellant, “A comment or statement of the Court which is not necessary for the determination of the issues joined in the parties’ pleadings, is an obiter. It has no binding authority and cannot be the subject of an appeal.” See also: A.G. Kwara State & Anor Vs Lawal & Ors. (2017) LPELR – 42347(SC) @ 11 – 12 F; Aondoakaa, SAN Vs Obot & Anor. (2021) LPELR – 56605(SC) @ 46 B – E. – Per K. M. O. Kekere-Ekun, JSC
GROUND OF APPEAL – FAILURE TO FRAME AN ISSUE FOR DETERMINATION
The effect of failure to frame an issue for determination from a ground of appeal is that the ground of appeal is deemed abandoned and liable to be struck out. See: Akinsuwa Vs The State (2019) LPELR – 47621 (SC) @ 46 E – G; Nwagbara Vs Jadcom Ltd. (2021) LPELR – 55329(SC) @ 11 A – B; Mohammed Vs Bormu & Anor. (2022) LPELR – 58065 (SC) @ 11-12 F-D. – Per K. M. O. Kekere-Ekun, JSC
ELECTION – CONDUCT OF PARTIES IN NOMINATION AND SPONSORSHIP
The authorities are well settled that while the nomination and sponsorship of a candidate for an election is the sole preserve and internal affair of a political party, and the Courts do not usually interfere, the non-interference is only where all the requirements of the law in relation thereto are complied with. See: Ndukwe Vs Ayu & Ors (2022) LPELR – 58905 (SC) @ 30 C – E referred to by learned counsel for the 1st Respondent. See also: P.D.P. Vs Sylva (2012) LPELR – 7814 (SC) @ 35 – 35 G – D.
Where a dissatisfied aspirant is able to bring himself within the narrow confines of Section 84(14) of the Electoral Act (previously Section 87(9) of the Electoral Act, 2010, as amended), the complaint of non-compliance becomes justiciable. See P.D.P Vs Sylva (supra); Daniel Vs INEC (2015) 9 NWLR (Pt. 1463) 113 @ 155D.
Per K. M. O. Kekere-Ekun, JSC
ELECTION – COMPONENTS OF A VALID PRIMARY ELECTION
What are the components of a valid gubernatorial primary election known to law? Section 84(1), (2), (4), (5), (13), (14) and 82(1) of the Electoral Act, 2022…
The components of a valid primary election, therefore, are: (i) following the process outlined for the specified mode of election adopted; (ii) ensuring equal opportunity for aspirants of being voted for by members of the party; (iii) giving stipulated notice to INEC; (iv) monitoring of the primary by INEC; and (v) declaration of the aspirant with the highest number of votes cast as the winner and forwarding his name to the Commission.
Per K. M. O. Kekere-Ekun, JSC
PRIMARY ELECTION – POWERS AND CONDUCT OF THE PARTIES – THE RIGHT TO SEEK REDRESS IN COURT
My Lords, it is quite clear from Section 84(2) of the Electoral Act that a political party has the exclusive right to determine the mode of conducting its primary election and may also change that mode, should the need arise. However, in exercising that right, the party must act within the confines of the law and its constitution and guidelines. Thus, while the Court would not ordinarily interfere with such internal affairs, Section 84(14) of the Electoral Act, 2022, provides a small window for an aggrieved aspirant who complains that in the selection of its candidate, his political party did not comply with the provisions of the Act or its constitution and electoral guidelines, the right to seek redress in Court.
See: Uba Vs Moghalu (2022) LPELR – 57876 (SC) @ 9-12 A – C; Lau Vs P.D.P, & Ors. (2017) LPELR – 42800 (SC) @ 73-75 A – A; Agi Vs P.D.P. (2016) LPELR – 42578 (SC) @ 94-95 A – B.
Per K. M. O. Kekere-Ekun, JSC
PRIMARY ELECTION – MANDATORY NATURE OF SECTION 85(1)
Learned counsel for the 1st Respondent has argued, relying on Amaechi Vs INEC (supra), Uba VS Moghalu (supra) and a decision of the lower Court in Aliyu Vs Namadi (2022) LPELR – 58823 (CA) @ 62-63 E – D … It is pertinent to note that in the decisions referred to, the mandatory nature of Section 85(1) of the Electoral Act, 2010 (which is in pari materia with Section 82(1) of the 2022 Act) was never in doubt. In PDP Vs Sylva (supra) and Uba Vs Moghalu (supra), what the Court did was to explain the rationale behind the provision. Their Lordships did not detract from its mandatory nature.
In Aliyu Vs Namadi (supra), the lower Court found that the Commission was duly notified within the stipulated time, of the date for the conduct of the primary. What was in issue was whether another 21 days notice was required where the election was rescheduled by a few days. The Court held that the 21 days stipulated did not extend to a rescheduled election. This position was upheld by this Court in SC/CV/1453/2022: Aliyu Vs Namadi delivered on 13th January 2023.
Per K. M. O. Kekere-Ekun, JSC
PRIMARY ELECTIONS – EXCLUSIVE DUTY OF THE NATIONAL EXECUTIVE COUNCIL
By virtue of Section 84(5)(b)(i) of the Electoral Act, 2022, it is clear that it is the National Executive Committee of a political party that has the vires to organize primary elections. The National Executive Committee may act through its National Working Committee. See also Article 13.4 of the 3rd Respondent’s constitution annexed to the Appellant’s supporting affidavit as Exhibit DSK1. It follows that it is only the National organs of the party that have the responsibility of notifying the 2nd Respondent of the date of the election and the mode to be adopted and not the State Chapter.
See: Emenike Vs PDP (2011) LPELR – 197.52 (CA) @ 44-46 F – E; Emeka Vs Okadigbo (2012) 18 NWLR(Pt, 1331) 55 @ 87H; Emenike Vs PDP (2012) 12 NWLR (Pt. 1315) 556 @ 594 B – G.
Per K. M. O. Kekere-Ekun, JSC
PRIMARY ELECTIONS – DIRECT PRIMARIES AND INDIRECT PRIMARIES
Section 84(4) of the Electoral Act, 2022 provides that where a political party adopts direct primaries, it must ensure that all aspirants are given equal opportunity of being voted for by members of the party. The provision is mandatory and must be complied with. Whereas, for indirect primaries, the electorate consists of ward delegates and the venue for the election is a single location specified by the National Executive of the party (see Exhibit DSK 3), in the case of direct primaries, all registered members of the party shall vote for aspirants of their choice at a designated centre in each ward of the relevant constituency.
There is no doubt that where the mode for the conduct of the primary is arbitrarily changed without notice to the aspirants and relevant authorities, the aspirants who are not privy to the decision would be placed at a disadvantage as it would be difficult to rally their supporters in all the wards of the state at such short notice.
Per K. M. O. Kekere-Ekun, JSC
POLITICAL PARTIES – FAILURE TO COMPLY WITH THE ACT AND GUIDELINES
Section 84(13) of the Electoral Act, 2022, is quite clear on the effect of failure to comply with the provisions of the Act and the guidelines of a political party in the selection or nomination of a candidate for election. Its candidate shall not be included in the election for the particular position in issue.
Per K. M. O. Kekere-Ekun, JSC
POLITICAL PARTIES – POWERS TO NOMINATE AND SELECT – CONDUCT IN EXERCISING POWERS
It is trite that the question of nomination or selection of candidates of a political party falls squarely within the internal affairs of the political party. It is outside the jurisdiction of the Court as no Court can dictate to a political party how to select its candidate or how to run its affairs. See ONUOHA V. OKAFOR & ORS (1983) 2 SCNLR 244; DALHATU V. TURAKI & ORS (2003) LPELR – 917 (SC); PDP & ORS v. EZEONWUKA & ANOR (2017) LPELR – 42563 (SC); UGWU & ORS V. PDP & ORS (2015) LPELR – 24352 (SC); EYIBOH V. ABIA & ORS (2012) LPELR – 20607 (SC). The discretion vested in a political party to choose its candidate also extends to the discretion to choose and change the mode of conducting its primary election through direct primary, indirect primary or consensus as prescribed by Section 84(2) of the Electoral Act, 2022.
However, in the selection of its candidates, a political party must act within the extant laws, as well as its own constitution and guidelines; otherwise, a Court will have jurisdiction to interfere. See Section 84(14) of the Electoral Act as well as the cases of UBA v. MOGHALU & ORS (2022) LPELR – 57876 (SC); IBRAHIM V. APC & ORS (2019) LPELR – 48995 (SC); PDP & ANOR v. SYLVA & ORS (2012) LPELR – 7814 (SC).
Per Adamu Jauro, JSC
PRIMARY ELECTIONS – A STATE CHAPTER CANNOT CONDUCT THE PRIMARY ELECTIONS OF A POLITICAL PARTY
It is trite that primary elections of political parties are to be conducted by the National Executive Council (NEC). See Section 84(5)(b)(i) of the Electoral Act, 2022. Article 13.4 of the 3rd Respondent’s Constitution and Paragraph 18(e) of its Guidelines empower the party’s National Working Committee (NWC) to act on behalf of the NEC in that regard. The primary election of a political party cannot be conducted by a State Chapter; neither can a State Chapter decide the mode of primary election to be adopted. See UBA V. OZIGBO & ORS (2021) LPELR – 56672 (SC); AKPATASON V. ADJOTO (2019) 14 NWLR (PT. 1693) 501; YARADUA V. YANDOMA (2015) 4 NWLR (PT. 1448) 123.
Per Adamu Jauro, JSC
PRIMARY ELECTION – DIRECT PRIMARIES
Section 84(4) of the Electoral Act mandates that a political party that adopts direct primary election “shall ensure that all aspirants are given equal opportunity of being voted for by members of the party”.
Per Adamu Jauro, JSC
CASES CITED
STATUTES REFERRED TO
2. APC Guidelines for the nomination of candidates for the 2023 General Elections
3. APC constitution 2022 (as amended)
4. Election Judicial Proceedings Practice Directions 2022
5. Court of Appeal Rules 2021
6. Constitution of the Federal Republic of Nigeria 1999 (as amended)
