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MARAFA & ORS v. DAN ALHAJI & ORS
CITATION: (2019) LPELR-47012(CA)
In the Court of AppealIn the Sokoto Judicial Division
Holden at Sokoto
ON MONDAY, 25TH MARCH, 2019Suit No: CA/S/32/19
Before Their Lordships:
TOM SHAIBU YAKUBU Justice, Court of AppealTIJJANI ABUBAKAR Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal
Between
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9) LP
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1. SENATOR KABIRU GARBA MARAFA2. ALH SIRAJO GARBA3. ALH MUHAMMAD JIMA4. YAKUBU MUKHTAR5. BELLO ABUABAKAR6. ZUBAIRU MUSA B.7. ALH HAMZA TUKUR8. AUWALU ALHAZAI9. NASIRU MOHAMMED FARU10. HON ALH SALISU AMINU11. SA'IDU BARE BARI12. UMAR HASHIMU13. ALH SANI GOBIRAWA14. ALH SANI GYARE KADAURI15. ALH MUSA SAMARU16. ALH ABDULLAHI NAHUCE17. BASHAR ABDULLAHI18. ADAMU RABIU TSIKAU19. SHAFI'I MUSA20. ABUBAKAR UMAR21. MOHAMMED SANI22. BUHARI ABDULLAHI23. JUNAIDU MOHAMMED24. AMINU ABUBAKAR WUYA25. AHMAD S/ASKI26. YUSUF BABAN RAGO27. SARKI NA YALWA28. ZAYYANU DAHIRU29. LAWAL DAN MALIKI30. BELLO SHEHU31. DAN MALIKI32. UMMARU BUZU33. AISHA BALA34. UMAR SHUAIBU35. DAN JA'O RINI36. LAWALI MOHAMMAD YARGEDA37. SHUGABA DA AIKI38. ALH HAMISU MAI AIKI39. MURTAL A. MANDE40. MAMUDA SADA41. ALH HASSAN ABDULLAHI42. ALH BELLO MAI YARMAKA43. ABUABAKAR KOKARI44. ALH BELLO D/UMMA45. ALH IBRAHIM IMAM46. ALH IBRAHIM47. SHEHU UMAR48. MUSA DOGO49. SANI BATURE50. HASSAN GARBA ZUBU51. JABIR UMAR52. SHAHU TAJA53. MALAMI SULAIMAN54. ABUBAKAR BAWA55. SANI BATURE56. ABUBAKAR MUH'D57. ALH SANAMILA M GIDA58. SANI A DAHIRU59. SANI BALA SANKALAWA60. ALH AMINU KURAR MOTA61. ALH DANYABO WAZOJI62. UMARU ABDULLAHI63. ALH ISAH MAIDAJI64. ABUBAKAR AHMAD JAURI65. GARBA SARKIN RUWA66. MUSA LABBO GAMO67. AUWALI ALIYU68. BELLO IBRAHIM69. SAYYADI ABUBAKAR70. BELLO USMAN71. YUNUSA USMAN72. BELLO S/YAMMA73. DAHIRU ABDULLAHI74. RABIU HAMZA75. SHEHU HALIDU76. MUSA LUMU GYALANGE77. ALH ISAH DAN LARABAWA78. ALH LAWALI JIKA79. ABDUL'AZIZ BARAU MALAM ZA80. USMAN MUHAMMAD ALTINE81. SURAJO MUHAMMAD82. KHALID BUHARI83. ANAS ABUBAKAR84. RABI'I SHUGABA85. JAMILU MUHAMMAD86. BALA SABO87. YUSUF ADAMU88. MALLAM FALALU MATOYA89. ALIYU MUH'D S/GARI90. SULAIMAN BALA91. BELLO BARAU92. SANI DAN ABU93. ALIYU S/FAWA94. DAHIRU HALILU95. ATTO USUMAN96. SALISU SAMAILA97. UMARU MALLAN MAGAMI98. DAHIRU ZAKARI99. BASHAR MOHAMMED100. SALE MOH'D DANBA'U101. LAWALI DAN MAIGORO102. MAL. IDRIS MUSA103. ABUBAKAR 'YARRUWA104. TUKUR LUNGUFARU105. ALIYU MAI MAI106. HASSAN AHMAD107. YUNUSA ABDULLAHI108. ALH IBRAHIM NA KATSALLE109. ATTAHIRU RABIU110. SAHABI DANDA111. ABDULLAHI USMAN112. SAMAILA SANI BINGI113. ALH DANJUMMA MAFI114. ALH SADO GARBA115. LAWALI BALA116. ALH SHEHU ABI117. MANU NA TA'ALA118. GADO MAI MODI119. ABDURRAHMAN SHINGE120. WAKKALA KARINGUGA121. ANARUWANATA KWAIRE122. SURAJO AHMAD123. YA'U NAMA124. ALH SADIKU KATURU125. AKILU SULAIMAN126. ALH ISAH BAKAWI127. ALH GARBA DAN ILA128. RABIU IBRAHIM129. SANI MUSA130. ALH GARBA WANKE131. SARKIN PAWA DAN ABU132. ALH MAMMAN NA'ISA133. ALH SAHABI KILLUTU134. BARA'U ALIYU135. MAL DAYYABU ALARAMA136. ALH ABDULKADIR LIMAN137. ALH ABDULSALAM ABUBAKAR138. ALIYU SAYYADI139. SULE MUHAMMAD140. AMADU SARKIN(For themselves and all other aspirants/candidates who paid prescribed fees for procurement of Nomination forms for purpose of contesting the 1stDefendant's 147 Nos. Ward Executive Committee, 14 Nos. Local Government Executive Committees and State Executive Committee Election held on 5th, 12thand 19th June 2018 in Zamfara State, but were wrongly excluded or prevented from participating by voting or being voted for).
- Appellant(s)
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And1. SANUSI LIMAN DAN ALHAJI2. ALHAJI BABANGIDA ABDULLAHI3. KABIRU MANDE CHAFE, CHAIRMAN APC TSAFEL. G (Suing for themselves and on behalf of allState APC Members)4. MUKHTAR SHEHU IDRISS5. HON. IKIRA ALIYU BILBIS6. HON. TIJJANI YAHAYA KAURA7. HON. ABDUL-AZIZ YARI ABUBAKAR8. HON. SANUSI GARBA RIKIJI9. HON. ABDULMALIK ZUBAIRU10. HON. HUSSAINI ABUBAKAR MORIKI11. HON. IBRAHIM MUH'D B/MAGAJI12. HON. MUTTAKA MUH'D RINI13. HON. AHMAD SHARU ANKA14. HON. UMARU JIBO BUKKUYUM15. HON. MUSTAPHA GADO ANKA16. HON. MUH'D SANI AHMAD SANI17. HON. KABIRU MOYI B/MAGAJI18. HON. YAHAYA JIBRIL BUKKUYUM19. HON. TUKUR MUH'D DANTASAWA20. HON. IBRAHIM MUH'D K/KOSHI21. HON. YAKUBU IBRAHIM NABATURE22. HON. ALIYU MUH'D GAYERI23. HON. ALIYU MUH'D FALALE24. HON. SANUSI MUH'D LIMAN25. HON. DALHATU MAHMED MAGAMI26. HON. LAWAL M. LIMAN27. HON. ABUBAKAR IDRIS KURYA28. HON. YAHAYA SHAHU MARADUN29. HON. YAHAYA ABDULLAHI GORA30. HON. HARUNA ABDULLAHI D/SADAU31. HON. IBRAHIM ABU MARU32. HON. SHEHU BELLO MAI WURNO33. HON. ALYU ANGO KAGARA34. HON. ISAH ABDULMUMINU35. HON. ALIYU ABUBAKAR MC36. HON. ALIYU ABUBAKAR DANJIBGA37. HON. MANIR ALIYU G/JAJA38. HON. YUSUF AHMAD MORIKI39. ALL PROGRESSIVES CONGRESS (APC)40. INUWA ABDULKADIR, 1ST NATIONAL VICECHAIRMAN NORTHWEST ZONE OF APC41. INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC)42. HON. SANI AJI
- Respondent(s)
RATIO DECIDENDI
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1. ACTION - LOCUS STANDI: Meaning of locus standi; what the court considers in determining whether a plaintiff has locus standi"Locus standi connotes the legal capacity which a person has to enable him file an action in a Court of law. There is a symbioticrelationship between jurisdiction and locus standi. Hence in the determination of whether or not a person has the legal capacity tofile an action in a Court of law, the plaintiff's statement of claim is the only process that will be considered by the Court. That is, itis from the averments in the statement of claim only which the Court carefully scrutinizes in order to decipher whether or not itdiscloses the plaintiff's interest and how that interest arises in the subject matter of the action filed by him. Thomas v. Olufosoye(1986) 1 NWLR (pt.18) 669; Adesokan & Ors v. Prince Adegorolu & Ors (1997) LPELR -151 (SC); Abisi & Ors v. Ekwealor & Anor(1993) LPELR -44 (SC); Owodunni v. Registered Trustees of Celestial Church of Christ (2000)10 NWLR (pt.675)315; (2000) 6 S.C.(Pt.II) 60."Per YAKUBU, J.C.A. (Pp. 48-49, Paras. E-C) - read in context
2. APPEAL - INTERFERENCE WITH EVALUATION OF EVIDENCE: Circumstances in which an appellate Court will interfere withevaluation of evidence made by a trial Court"?It is apparent from the decision of the lower Court, that attention was not accorded to the materials before it, the lower Courtfailed to properly evaluate the evidence and come to a conclusion, this is certainly a case of the lower Court shutting its eyes tothe obvious, and remained persistently on the path of error thereby giving a decision that is perverse, a decision that is differentfrom what is reasonable or required, a decision that is against the weight of evidence. The law is settled that where the trial Courtfails to properly evaluate the evidence placed before it, the Appellate Court is in as good position as the trial Court to re-evaluatethe evidence placed before it, to ensure that justice is done to the parties, this is in accord with the provisions of Section 15 of theCourt of Appeal Act 2004. Having painstakingly perused the evidence before trial Court, I agree with the learned Counsel for theAppellants that the lower Court failed to properly evaluate the evidence before it. In ATOLAGBE V. SHORUN SC. 14/1984 on themeaning of what constitutes a perverse decision, OPUTA (JSC) (of blessed memory) said as follows:"Perverse simply meanspersistent error, different from what is reasonable or required, against the weight of evidence. A decision may be perverse wherethe trial Judge took into account matters not to be taken into account or where the judge shuts his eyes to the obvious."PerYAKUBU, J.C.A. (Pp. 80-81, Paras. D-E) - read in context
3. COURT - JURISDICTION: Importance of jurisdiction; effect where a Court lacks jurisdiction over a matter"The law has remained very well settled beyond per adventure, by a long and unbroken chain of judicial authorities of theSupreme Court and this Court to the unarguable conclusion that jurisdiction is the vires, the power, that a Court of law has andpossesses which enables it to take cognizance of, hear and adjudicate on any matter placed before it for its determination. That is,jurisdiction is the authority that a Court of law has in order to decide any matter that is laid before it in a formal way for itsdecision on such matters.Therefore, where any Court lacks the jurisdiction to try any matter filed before it, but goes ahead to determine it, such a decisionamounts to nothing as it will be declared a nullity by an appellate/higher Court, hence it will be tantamount to an exercise infutility. To underscore the criticality and quintessence of jurisdiction to adjudication, the Supreme Court in a plethora of decidedauthorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt.1199) 411; (2010)LPELR -9716 (SC); (2010) 3 SCNJ (pt.ii) 441 @ 453-452, reiterated the law succinctly, per Adekeye, JSC., that:"Jurisdiction is a term of comprehensive import embracing every kind of judicial action. It is the power of a Court to decide amatter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and theparties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment.Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court's jurisdiction is called a thresholdissue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for ifthe Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantlydecided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988)3 NWLR (pt. 89) pg.508; Oloriode v. Oyebi (1984) 1 SCNLR pg.390; Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) pg. 105; PetrojessicaEnterprises Ltd v. Leventis Technical Co Ltd (1992) 2 SCNLR pg.341; Barclays Bank v. Central Bank of Nigeria (1976) 6 SC pg.175;African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR pt.6 pg.137; Adeleke v. OSHA (2006) 16 NWLRpt.1006 pg.608; Attorney General Anambra State v. A-G Federation (1993) 6 NWLR pt. 302 pg.692; Saleh v. Monguno (2003)1NWLR pt. 801 pg. 221. The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings inthe lower Court, in the Court of Appeal or even for the first time in the Supreme Court. The issue of jurisdiction being so pivotal canbe raised suo motu by the Court so long as the parties are accorded the opportunity to react to the issue."The eminent and revered jurist Mohammed Bello, C.J.N. of blessed memory, in the judicial words on marble on jurisdiction, in ChiefUtuedo Utih & 6 Ors v. Jacob U. Onoyivwe & 5 Ors(1991) 1 SCNJ 25 @ 49, had stated eloquently and allegorically that:"Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be likean animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood intoit, would be an abortive exercise."The reason for the above stated allegoric analogy is not far fetched. And it is because the life of the flesh is in the blood. In otherwords, jurisdiction is the life in the action, placed before the Court of law for adjudication, such that the absence of it, renders theaction lifeless. In the locus classicus - Madukolu & Ors v. Nkemdilim (1962) All NLR 581; (1962) 2 SCNLR 341 @ 587-588, theFederal Supreme Court, had held on jurisdiction and competence of a Court, thus:"Put briefly, a Court is competent when -a. It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified forone reason or another; andb. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court fromexercising its jurisdiction; andc. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exerciseof jurisdiction."The three conditions stated above must co-exist in respect of any action filed in a Court of law, before the Court can be invested orclothed with proper competence and the requisite jurisdiction, to entertain and adjudicate on it. The Military Administrator, BenueState & 20 Ors v. Captain Clement Abayol (Rtd) (2001) FWLR (pt.35) 604; (2001) 5 NWLR (pt.705) 19; Ishola v. Ajiboye (1994) 19LRCN 35; (1994) 6 NWLR (pt.352) 506; Matari v. Dan Galadima(1993) 3 NWLR (pt.281) 266; Attorney General, Anambra State v.Attorney General, Federation (1993) 6 NWLR (pt.302) 692; Odofin v. Agu (1992) 3 NWLR (pt.229) 350."Per YAKUBU, J.C.A. (Pp.42-46, Paras. C-E) - read in context
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4. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter"...Furthermore, the law has been well settled to the effect that in order for the Court to determine whether or not it possesses therequired competence to determine the cause of action placed before it, the processes that were filed in order to activate itsjurisdiction, which it needs to examine, are the writ of summons and the statement of claim only. And where the action was begunby originating summons, then it is the reliefs sought therein as well as the depositions contained in the affidavit in support of theoriginating summons, that would be examined in order to discern if the Court has the jurisdiction to entertain and determine theaction. These are the only processes from which the facts giving rise to the cause of action can be gleaned for the Court to inquireinto and determine whether it has the jurisdiction to determine the plaintiff's action. This is because, it is the plaintiff who invokesthe constitutional right for a determination of his right and accordingly the activation of the judicial powers vested in the Courts bythe Constitution of the Federal Republic of Nigeria, 1999 as amended. That is, it is the plaintiff's demand and not the defendant'sanswer to that demand that is a relevant issue for consideration at that stage. Therefore, ordinarily, it is the claim of the plaintiffonly and not the defence, which the Court looks at to determine its jurisdiction. Adeyemi & Ors v. Opeyori (1976) LPELR - 171 (SC)@ 21-22; Attorney General, Oyo State v. Nigeria Labour Congress (2003) 8 NWLR (pt.821) 1; Akande & 2 Ors v. Busari Alagbe &Anor. (2001) FWLR (pt.38) 1352; Attorney General Federation v. Guardian Newspaper Ltd & 5 Ors (1999) 9 NWLR (pt.618) 187;Messers N. V. Scheep & Anor v. The MV 'S Araz & Anor (2000) 15 NWLR (pt.691) 622; (2000) FWLR (pt.34) 556; National ElectricPower Authority v. Atukpor (2001) FWLR (pt.20) 626; General Sani Abacha & 3 Ors v. Chief Gani Fawehinmi (2000) 6 NWLR(pt.660) 228; (2000) FWLR (pt.4) 557; Okulate & 4 Ors v. Awosanya & 2 Ors (2000) 2 NWLR (pt.646) 530; Senator Yakubu Lado &Ors v. Congress for Progressive Change & Ors (2011) LPELR- 8254 (SC) @ 35; Inakoju v. Adeleke & Ors (2007) 4 NWLR (pt.1025) 1;Jev v. Iyortyom (2014) 14 NWLR (pt.1428) 575."Per YAKUBU, J.C.A. (Pp. 46-48, Paras. E-D) - read in context
5. ELECTORAL MATTERS - POLITICAL PARTY PRIMARY: Who can institute an action in court to complain about the conduct of apolitical party primaries"From the averments contained in the aforementioned paragraphs of the amended statement of claim and their reply to theappellants' statement of defense, it is evident that the 1st -38th respondents, being card carrying members of the 39threspondent, participated as aspirants in the primary election, allegedly conducted by the 39th respondent on 3rd and 7th October,2018, to pick its candidates for the Zamfara State Gubernatorial, National and State House of Assembly, to contest in the Februaryand March, 2019 General Elections. Their grouse was that having participated in the primary elections, the 39th respondent hadthe plan to reverse the results from the aforesaid primary elections and short change them, hence they had to approach the Courtbelow, in order to protect their rights and interests. I am quite satisfied that the 1st-38th respondents, by virtue of Section 156 ofthe Electoral Act, 2010, (as amended) by Electoral (Amendment) Act No.2 2011, which defines the word: "aspirant" as "a personwho aspires or seeks or strives to contest an election to a political office"; are aspirants who participated in the aforesaid primaryelection, allegedly conducted by the 39th respondent on 3rd and 7th October, 2018 and ipso facto, they each had locus standiwhen they filed their claim at the Court below. Isah Shuaibu Lau v. Peoples Democratic Party & Ors (2017) LPELR-42800 (SC) @ pp.24-26; Ardo v. Nyako (2014) 10 NWLR (pt.1416) 591."Per YAKUBU, J.C.A. (Pp. 51-53, Paras. E-A) - read in context
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6. ELECTORAL MATTERS - POLITICAL PARTY PRIMARY: Which Court has jurisdiction in respect of party primaries"I now turn my attention to the appellants' contention, to the effect that by virtue of Section 251(1) (r) of the 1999 Constitution ofthe Federal Republic of Nigeria, as amended, the Court below had no jurisdiction to have entertained and determined the 1st-38threspondents' action. In order to appreciate the import and dynamics of this issue, the provisions of Section 251(1) (r) of the 1999Constitution and Section 87(9) of the Electoral Act, 2010, as amended, are each reproduced as follows, respectively:"251(1) - Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as maybe conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise exclusive jurisdiction tothe exclusion of any other Court in civil causes and matters-(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action ordecision by the Federal Government or any of its agencies;?Section 87(9) of the Electoral Act ,2010 as amended, says:"87 (9) Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisionsof this Act and the guidelines of a political party has not been complied within the selection or nomination of a candidate of apolitical party for election, may apply to the Federal High Court or the High of a State, or of the Federal Capital Territory, forredress."Indisputably, the law is no longer recondite, but very well settled to the effect that it is only members of a political party who haddesired to contest elections into political offices at the National, State and Local Government levels in Nigeria and whoconsequently participated in the party primaries conducted by their particular political party, but have some grouse against theconduct and/or outcome of primary elections, that can institute an action in Court and ventilate their grievances by virtue ofSection 87(9) of the Electoral Act, 2010 as amended. The decided authorities of the Supreme Court and this Court on this settledprinciple of the law, are a basketful. So, just a few of them will suffice: People's Democratic Party & Anor. v. Timipre Sylva (2012)13 NWLR (pt.1316) 85; (2012) All FWLR (pt.637) 606; (2012) LPELR- 7814 (SC); Senator Dahiru Gassol v. Alhaji Abubakar Tutare(2013) 14 NWLR (pt.1374) 221;(2013) LPELR-20232 (SC); Terver Kakih v. People's Democratic Party & Ors (2014) LPELR -23277(SC) @ 69-70; Heineken Lokpobiri v. Ogola & Ors (2016) 13 NWLR (pt.1499) 328 @ 389; Shinkafi & Anor v. Yari & Ors (2016) 7NWLR (1511) 340 @ 370; Olugbemi v. Lawrence (2017) LPELR - 42361 (SC); Lau v. People's Democratic Party, supra. The vexedquestion of whether or not it is the Federal High Court which has the exclusive jurisdiction to hear and determine any suitbordering on grievances complained of by aspirants who participated in political party primaries was succinctly resolved by theapex Court, in its aforementioned decisions, to the conclusive effect that both the Federal High Court, State High Court and theHigh Court of the Federal Capital Territory, have concurrent jurisdiction to hear and determine complaints by aspirants who hadparticipated in political parties' primary elections by virtue of Section 251(1) (r) of the 1999 Constitution, as amended and Section87(9) of the Electoral Act,2010, as amended. Instructively, in the most recent decision of the apex Court, that is, Lau v. PDP & Ors,(supra), on a similar matter that was filed, heard and determined at the High Court of the Federal Capital Territory, Abuja, withrespect to a complaint that arose from the conduct of the People's Democratic Party primary election for the selection of itscandidate, to contest in a legislative office general election; it was reiterated emphatically to the effect that the Federal HighCourt, the State High Court and the High Court of the Federal Capital Territory, possess concurrent jurisdiction to hear anddetermine such matters. At pages 43-46 of the report, Augie, JSC., succinctly stated that:"The Current position of the law is that in exercising jurisdiction under Section 87(9) of the Electoral Act, the Federal High Courtand the High Court of a State or FCT have concurrent jurisdiction to hear and determine disputes arising from conduct of a party'sprimaries - see Salim v. CPC (Supra), wherein Peter-Odili, JSC, stated as follows "This Court would take the stand it took in Ucha v.ONWE (2011) 1 SCNJ 232 because of the brand new provision of Section 87(9) of the Electoral Act. It is therefore, to be said in viewof this novel provision that the previous all-embracing interpretation of Section 251 of the 1999 Constitution is given once theFederal Government or its Agencies are involved would have to be given a broad view in the co-existing situation of the provisionsof Section 87(9) of the Electoral Act and the sui generis nature of the subject matter, the Court of Appeal was in error in holdingthat the Federal High Court had the exclusive jurisdiction to adjudicate on this pre-election dispute to the exclusion of the StateHigh Court. This is because the jurisdiction is exercisable by either the Federal High Court or State High Court or High Court of theFCT. And Lokpobiri v. Ogola (Supra). Wherein Muhammad, JSC said- Section 251 of the 1999 Constitution (as amended) createsjurisdiction and make same exclusively exercisable by the Federal High Court only in respect of the subject matters theparagraphs under the section cover. Election and election related matters, be it stressed, have not been provided for by any of theparagraphs under Section 251 of the 1999 Constitution, the contrary submissions of Counsel in this regard are certainlymisinformed and their reliance on our decision in PDP V. Sylva (Supra) and Kakih v. PDP (supra) are without basis.Obviously the law is not static, particularly in election matters, and what the law makers have done with the enactment of Section87(9) of the Electoral Act, is to make more Courts available to aspirants, who complain that provisions of the Electoral Act andGuidelines of a political party, has not been complied with in nominating candidates.To insist on the narrow and limited jurisdiction exclusive to the Federal High Court under Section 251 (1) (q) (r) and (s) of the 1999Constitution when it comes to election related matters, is to close the doors that was opened to such dissatisfied aspirants to seekredress in the other High Courts other than Federal High Court. This I will not do; and this issue is resolved in favour of theAppellant..."?My Lords, drawing inspiration, which we are bound to, from the decisions of the Supreme Court, referred to above and since it isglaring and clear as crystal, that relief 16 (e) - (j) as endorsed in the amended statement of claim, at the Court below, wastargeted at the 3rd Defendant- the Independent National Electoral Commission (the 41st respondent herein), I have no doubt inmy mind that the Federal High Court does not possess an exclusive jurisdiction in this matter. I am of the considered and firmopinion that the Federal High Court, the State High Court, as in the instant case, and the High Court of the Federal CapitalTerritory, have concurrent jurisdiction to entertain and determine disputes which arise from the conduct of political parties'primary elections for candidates who seek and desire to contest elections into Executive and Legislative Offices. Therefore, I am inagreement with the submissions by the learned Senior Counsel for the 1st - 38th and 39th - 40th respondents, respectively, to theeffect that the learned trial judge was on firma terra, in his conclusion that he possessed the jurisdiction to entertain anddetermine the 1st-38th respondents' action."Per YAKUBU, J.C.A. (Pp. 53-59, Paras. A-F) - read in context
7. ELECTORAL MATTERS - NOMINATION AND SPONSORSHIP OF CANDIDATE: Whether a party seeking to nominate candidatesfor elections must hold primaries and submit the list of candidates it proposes to sponsor to INEC"Section 31 (1) of the Electoral Act 2010 (as amended) provides that:Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act,submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.The above provision of the law, takes me to Section 87 (1) of the same Electoral Act the section also dealing with primary electionsprovides as follows:87(1). A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all electivepositions."Per YAKUBU, J.C.A. (P. 74, Paras. B-E) - read in context
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8. ELECTORAL MATTERS - SELECTION/NOMINATION OF CANDIDATE: Whether the procedural guidelines for thenomination/selection of candidates as provided by the law must be followed"The Provisions of Sections 31(1) and 87(1) of the Electoral Act, 2010 (as amended), and The All Progressives Congress guidelinesfor the nomination of candidates for the 2019 general elections - Direct primaries, prescribe the mode of producing candidates forthe 2019 elections, the procedure must be followed, whenever there is a specific provision regulating the procedure for doing aparticular act, that procedure must be followed, it is also trite that when a statute dictates a certain mode of doing something,then that method and no other must be employed in the performance of the Act, see: BERNARD AMASIKE V. REGISTRAR GENERAL,CORPORATE AFFAIRS COMMISSION (2010) LPELR-456 (SC)."Per YAKUBU, J.C.A. (Pp. 81-82, Paras. E-B) - read in context
9. ELECTORAL MATTERS - SELECTION/NOMINATION OF CANDIDATE: Whether the procedural guidelines for thenomination/selection of candidates as provided by the law must be followed"...Let me end with these words of admonition proffered by his Lordship AUGIE JSC in LAU V. PDP (Supra) at pages 66-67 thereof,thus"This is a hard and very bitter lesson for political parties to learn, they may have chosen candidates or eminent personalities theywant to present as candidates to INEC, but they have to play by the rules, the chosen candidates must comply with therequirements of the law; they must abide by the provisions of the Electoral Act, which creates a level playing field for all aspirants,who seek to contest elections. So, the political parties and their candidates must obey the Rules."Per YAKUBU, J.C.A. (P. 83, Paras.C-F) - read in context
10. ELECTORAL MATTERS - SELECTION/NOMINATION OF CANDIDATE: Whether the procedural guidelines for thenomination/selection of candidates as provided by the law must be followed"This is another instance of brazen impunity and flagrant disregard to the provisions of the Electoral Act and Political partyguidelines in the selection of candidates for the 2019 general Elections. It is no longer possible for politicians to throw caution tothe wind in the selection process of candidates and get away with it, right from the decision of the Supreme Court of Nigeria inLAU V. PEOPLES DEMOCRATIC PARTY (PDP) (2017) LPELR-42800 (SC), the Supreme Court of Nigeria sent out signal to politiciansthat developing and improving internal democracy in managing domestic affairs of political parties lies at their door step, if it isnot done right, the law has given room for judicial intervention. The judgment just rendered in this appeal is one of such instances.My Lord KEKERE-EKUN JSC, in his elaborate contribution to the decision in LAU V. PDP (Supra), said as follows:"I do not have much to add save to observe that once again we are faced with a situation where a political party in selecting itscandidates for an election has completely thrown caution to the wind and acted in flagrant disregard of the provisions of theElectoral Act and its own guidelines.There is a settled line of authorities to the effect that domestic or internal affairs of a political party are not justiciable, that theCourts will not dabble into membership of a party or who it chooses to sponsor for an election. See. Onuoha vs Sylva (2012) 13NWLR (pt. 1316) 85; APGA Vs Anyanwu (2014) 1-2 SC (pt. 1); Emenike vs PDP (2011) LPELR-1975 2 CA). However, in making itschoice, a political party must act within the law and must comply with its own constitution and guidelines. Prior to 2006, politicalparties acted with impunity in the selection, sponsorship and substitution of candidates for election. The absolute powers ofparties in this respect were curtailed to an extent by the introduction of Sections 32 and 34 (now Section 33 of the Electoral Act2010 (as amended) made specific provisions for the manner and time within which the substitution of a candidate could be madewhile Section 32(4) (now Section 35(4) of the Act, permitted the particulars submitted to INEC by a candidate to be challenged inCourt. A further amendment of the Electoral Act in 2010 vide Section 87(9) thereof provided that an aspirant who is dissatisfiedwith the conduct of his party primary election or who alleges non-compliance with the Electoral Act or the party's constitutionand/or guidelines in the selection or nomination of a candidate of a political party for election may seek redress at the FederalHigh Court, or the High Court of a State or Federal Capital Territory. The reason is not far-fetched. While the actual choice of acandidate is within the domestic affairs of the party, which is not justiciable, the party must adhere strictly to the provisions of theElectoral Act and its own Constitution and guidelines in carrying out the exercise. Section 87(9) empowers the Court to intervenewhere a party (as in this case) has acted arbitrarily and with impunity. See; Emenike v. PDP (2012) 12 NWLR (pt. 1315) 556 @ 603,E-G; Uzodinma v. Izunaso (2011) 18 NWLR (Pt. 1279) 689 @ 717-719 G-B".Whenever a procedure for doing a particular process is set down by law, that and no other procedure must be followed."PerABUBAKAR, J.C.A. (Pp. 84-87, Paras. C-B) - read in context
11. EVIDENCE - EVALUATION OF EVIDENCE: Duty of a trial court to evaluate the entire evidence before it"I am convinced that the lower Court failed in its duty to properly evaluate the evidence placed before it by the Appellants in thisappeal, let me refer the decision in OVUNWO & Ors V. WOKO & Ors (2011) LPELR-2841 (SC), where my Lord CHUKWUMA ENEH JSC(of blessed memory) said: "I must however , respectfully observe at this stage vis a vis the lower Court's manner of couching itsjudgment in this appeal that every Judge reserves the right as to his own style of writing judgments whether sitting at the trial orappellate level of the Courts. All the same, what must be recognized as settled law is the duty to pronounce judgment on all issuesplaced before the judge for resolution. Without over simplifying this duty every judgment has to state the facts of the case, statethe points at issue requiring the Court to pronounce upon them, then the Courts decision with the reasons for same."Per YAKUBU,J.C.A. (Pp. 82-83, Paras. C-A) - read in context
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12. EVIDENCE - EVALUATION OF EVIDENCE: Duty of the trial Court as regards perception, evaluation and findings of fact"There is nothing wrong in setting the stage by stating the settled position of the law on evaluation of evidence, let me refer to thedecision of the Supreme Court of Nigeria in UMAR V. BAYERO UNIVERSITY KANO (1988) 7 SC (Pt. II) 1, where my law lord BELGOREJSC (Later CJN) said as follows:"It is the primary duty of the trial Court to evaluate evidence before it and make definite findings on such evidence. It has everyadvantage of doing this. The witnesses are before it and it is well placed to judge the demeanor of each witness. For examination-in-chief, cross examination and re-examination, the trial Court has an advantage over all appellate Courts of deciding who tobelieve or disbelieve. The record of proceeding, however detailed or comprehensive is not cinematograph or even live voiceaccompanying pictures but mere attempt to record what was said or demonstrated and not the demonstration of the evidenceitself. It is for this reason that unless it is expedient in exceptional circumstances, the appellate Court should not disturb thefindings of fact of trial Court. You can believe that person you can see and hear; similarly, the person you disbelieve. A Court ofAppeal merely sees the records and not the person whose voice and demonstration are written down. The exceptionalcircumstances could be incompetent evidence, evidence legally inadmissible like hear-say and some secondary evidence. Fortrials are only trials in law if based on lawful evidence; a judgment based on inadmissible evidence is no judgment and will bedeclared null and void".I also refer to the decision of this Court in AKINTOLA V. ADEGBITE (2007) ALL FWLR (Pt. 372) 1891 at 1898, delivered by my lawLord Augie JCA (as he then was) (Now JSC) on what constitutes proper evaluation of evidence, my Lord said as follows:"Evaluation of evidence entails the assessment of evidence so as to give value or quality to it; it involves a reasoned belief of theevidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. Theremust be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. In the instant case, thelower Court clearly enumerated its reasons for preferring the evidence of the respondent. See Oyekola v. Ajibade (2004) 17 NWLR(Pt. 902) 356; Idakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) 249; F.B.N. Plc v. Oniyangi (2000) 6 NWLR (Pt. 661) 497, Fasanyav. Adekoya (2000)15 NWLR (Pt. 689) 22, (2001) FWLR (Pt. 34) 516;Merchantile Bank of Nig. Plc. v. Nwobodo (2000) 3 NWLR (Pt.648) 297."Per YAKUBU, J.C.A. (Pp. 63-66, Paras. E-A) - read in context
13. EVIDENCE - ADMISSION AGAINST INTEREST: Effect where a party makes an admission against his interest"The law is well settled that where there are admissions against interest such admissions will be admissible against a person, suchevidence shall be viewed in relation to the entire evidence before the Court, see: KAMALU & ORS V. DANIEL NWAKUDU UKAUMUNNA & ORS (1997) LPELR-1657 (SC)."Per YAKUBU, J.C.A. (P. 79, Paras. E-G) - read in context
14. EVIDENCE - EVALUATION OF EVIDENCE: Procedure for the evaluation of evidence in civil cases"Now the case of the Appellants is that the lower Court failed to evaluate the evidence before it before arriving at its conclusion. Ihave gone through the entire judgment of the lower Court more particularly from pages 2234-2253 of the printed record and whatI find therein are the summary of the evidence led by all the parties the arguments of counsels and the issue distilled fordetermination by the lower Court. As far back as 1978 the Supreme Court in the case of Odofin & Ors v Mogaji & Ors (1978) NSCC275 at 277 stated the procedure to be followed in the evaluation of evidence in the following terms;"In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weightat all. Therefore in deciding whether a certain set of facts was given in evidence by one party in a civil case before a Court inwhich both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after summaryof all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other then decide upon thepreponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law toit." See UKAEGBU & ORS V NWOLOLO (2009) LPELR 3337 (SC); EYIBOH V ABIA & ORS (2012) LPELR-20607 (SC); STALLION SEAFOODS LTD WARRINGTON V NOGUMWEGIE (2013) LPELR-20313 (CA); ANOSIKE VS DINYO (2016) LPELR-41397 (CA)The law is settled that in civil matters such as in the instant case the Court decides the case on the balance of probability orpreponderance of evidence and this the Court does by putting the admissible evidence adduced by the parties on the imaginaryscale weigh them and decides which is heavier not by the number of witnesses called or documentary evidence placed but by thequality or probative value of the evidence be it oral or documentary. In determining which is heavier, the judge will necessarilyhave regard to the following;- (a) Whether the evidence is admissible;(b) Whether it is relevant;(c) Whether it is credible;(d)Whether it is conclusive and (e) Whether it is more probable than that given by the other party. Finally, after invoking the law thatis applicable to the case the trial judge will then arrive at his final conclusion based on the evidence which he accepted. Evaluationof evidence is therefore the assessment of all the facts presented by the parties and the ascription of probative value to them.That duty remains foisted on the trial judge. See Baba v Nigerian Civil Aviation & Anor (1991) LPELR-69 (SC); EZEMBA V IBENEME& ANOR (2004)LPELR-1205 (SC).In my view the evaluation procedure adopted by the trial Court was not in consonance with the above principles on evaluation ofevidence. There is nothing in the judgment to show any attempt on the part of the lower Court to put the evidence adduced by theparties on the imaginary scale, scrutinize same to know which has probative value over the other before arriving at its conclusiongranting all the reliefs of the plaintiffs."Per TUKUR, J.C.A. (Pp. 89-92, Paras. F-D) - read in context
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TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading
Judgment): This appeal stems from the Ruling and
Judgment of the High Court of Zamfara State delivered by
Shinkafi J, on the 25th day of January 2019 in Suit No.
ZMS/GS/52/2018 wherein the lower Court over ruled the
Appellants preliminary objection and gave judgment in
favour of the 1st to 38th Respondents and directed the
39th-41st Respondents to accept the names of the 1st to
38th Respondents as the candidates of the 39th
Respondent for election to the offices of Governor, National
and State Assembly elections fixed for 2019.
It is important to mention that the 1st to 38th Respondents
in this appeal were the Plaintiffs at the Court below. At the
Court below as per their amended statement of claim dated
13th November 2018 found at pages 22-29 of the additional
records of appeal. The Plaintiffs claimed the following
reliefs:
a) AN ORDER DECLARING as lawful and valid the
primary elections conducted by the APC (herein
Plaintiffs party) under the supervision of the 3rd
Defendants and security agent on the 3rd and 7th day
of October 2018 for the purpose of producing
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candidates to vie for the various elective office which
produce the Plaintiffs under the platform of the 1st
Defendant.
b) A DECLARATION that any decision or steps taken
to reverse the results of the primary election duly
conducted on the 3rd and 7th day of October 2018
and monitored by the 3rd Defendant is or will amount
to a nullity, void and of no effect whatsoever.
c) A DECLARATION that the 1st Defendant is bound
to recognize, accept and forward to the 3rd Defendant
the list of candidates that emerged winners in the
Governorship, National Assembly and State
Legislative Houses primary elections of the 1st
Defendant in Zamfara State held on the 3rd and 7th
October 2018 and monitored by the 3rd Defendant.
d) A DECLARATION that the 3rd defendant cannot
refuse or shut out the 1st Defendant from presenting
or forwarding to it the list of candidates that emerged
winners in the Governorship National Assembly and
State Legislative Houses Primary Elections in
Zamfara State having been conducted on 3rd and 7th
October 2018 to hold their primary elections.
e) A DECLARATION that the 3rd defendant cannot
refuse to accept and publish the list of candidates
that
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emerged winners of the Governorship, National and
State Legislative Houses Primary elections of the 1st
Defendant in Zamfara State submitted to it for the
2019 general elections.
f) AN ORDER of this Honorable Court directing the
3rd Defendant to accept and publish the list of
Governorship, National and State Legislative Houses
primary elections of the 1st Defendant in Zamfara
State held on the 3rd and 7th October 2018 and
monitored by the 3rd Defendant.
g) AN ORDER directing the 3rd defendant to accept
and accord due recognition to the list of candidates
that emerged winners in the Governorship National
and State Legislative Houses Primary Elections of the
1st Defendant in Zamfara State on 3rd and 7th
October 2018.
h) AN ORDER mandating or compelling the defendant
to recognize and accept the list of candidates that
emerged winners in the Governorship, National and
State Legislative Houses Primary Elections of the 1st
Defendant in Zamfara State held on 3rd and 7th
October 2018.
i) AN ORDER directing the defendants to recognize
only the result of the Primary election of the 1st
Defendant held on 3rd and 7th October 2018 in
Zamfara State.
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j) AN ORDER of perpetual injunction restraining the
defendants either by themselves, through their lawful
agents, privies or assign from taking any steps
towards cancelling/rejecting the result of the primary
election held on 3rd and 7th October 2018 and
monitored by the 3rd Defendant.
k) The cost of filing, and prosecuting this suit.
The Appellants then stated that, at all material times all the
Respondents except 39th Respondent admitted that after
two unsuccessful attempts to conduct primary elections,
they could not proceed to conduct primaries, but on the
part of the 39th Respondent it asserted that even though
primary elections were not conducted, it exercised its right
to present list of candidates agreed upon by consensus. I
must be quick to mention that the 1st to 38th Respondents
insisted that primary elections were conducted but the 39th
Respondent’s electoral officer for some reasons best known
to him refused to submit the list of winners of the primary
elections to the Independent National Electoral
Commission. The 1st to 38th Respondents sensing that
their list of successful candidates might be rejected by the
Independent
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National Electoral Commission rushed to Court and
instituted suit NO. ZMS/GS/52/2018, claiming the reliefs
set out herein before in this judgment.
The matter then went to trial, parties called witnesses and
tendered exhibits, at the end of the trial judgment was
entered in favour of the Respondents, the Appellants
became nettled by the decision and therefore made for this
Court on the 29th day of January 2019. Appellants filed
Notice of appeal containing two grounds on the 29th day of
January 2019, and additional grounds on the 7th of
February 2019. The Notices are found at pages 2256-2274
of the records of appeal volume 5.
The Appellants brief of argument was filed by learned
Counsel Maidawa on the 4th day of March 2019, wherein
learned Counsel nominated four issues for determination,
the issues are reproduced as follows:
1. Whether having regards to the provisions of
Section 251(1) (r) of the 1999 Constitution of the
Federal Republic of Nigeria, as amended, the Court
below has jurisdiction to adjudicate the claim of the
1st -38th Respondents. Distilled from ground No. 4.
2. Whether the Court below was right in placing
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reliance on materials, depositions and documentary
exhibits contained in and/or attached to the counter
affidavit and further affidavit by the 1st-38th
Respondents in opposition to the preliminary
objection, to hold that the 1st to 38th Respondents
are aspirants and have legal s tanding to
institute/maintain and or prosecute the claim in suit
No. ZMS/GS/52/2018- Distilled from additional
ground No 5.
3. Whether the Court below did discharge the duty
incumbent upon it to evaluate or properly evaluate
and ascribe weight to the evidence led by the parties
before it before coming to the Conclusion that the 1st
to 38th Respondents claim was proved and granting
the reliefs sought by them-Distilled from ground No.
2.
4. Whether the Appellants right to fair hearing
guaranteed by Section 36(1) of the 1999 Constitution
of the Federal Republic of Nigeria (as amended) was
breached by the Court below. Distilled from ground 1.
The Appellants also filed reply brief through learned
Counsel Abdulkadir, the reply was filed on the 8th day of
March 2019.
The brief of the 1st to 38th Respondents was filed by
learned Counsel Edeze, on the 6th day of March 2019,
Counsel
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submitted four issues for determination, the issues are as
set out below:
1. Having regards to the provisions of Section 251(1)
(r) of the 1999 Constitution of the Federal Republic of
Nigeria, (as amended), whether the lower Court has
jurisdiction to adjudicate on the claims of the 1st -
38th Respondents - (Distilled from ground No. 4).
2. Whether the lower Court was right in placing
reliance on materials, depositions and documentary
exhibits contained in/attaching to counter affidavit
and further affidavit fi led by the 1st -38th
Respondents in opposition to the preliminary
objections to hold that the 1st - 38th Respondents are
a s p i r a n t s a n d h a v e l e g a l s t a n d i n g t o
institute/maintain and or prosecute the claim in suit
No. ZMS/GS/2018- (Distilled from additional ground
No. 5).
3. Whether the lower Court properly evaluated the
evidence of all the parties before arriving at the
conclusion that the 1st -38th Respondents proved
their case to be entitled to the reliefs they sought-
(Distilled from ground No. 2).
4. Whether the Appellants right to fair hearing
guaranteed by Section 36(1) of the 1999 Constitution
of
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the Federal Republic of Nigeria (as amended), was
breached by the Court below- (distilled from ground
No. 1).
Learned Counsel Azie filed the 39th to 40th Respondents
brief on the 6th day of March 2019 where learned Counsel
also crafted four issues for determination on behalf of the
39th to 40th Respondents. The issues crafted for discourse
by the 39th-40th Respondents are similar to Appellants
issues and those of the 1st to 38th Respondents, they are
also reproduced as follows:
1. Having regards to the provisions of Section 251(1)
(r) of the 1999 Constitution of the Federal Republic of
Nigeria, (as amended), whether the lower Court has
jurisdiction to adjudicate on the claims of the 1st -
38th Respondents - (Distilled from ground No. 4).
2. Whether the lower Court was right in placing
reliance on materials, depositions and documentary
exhibits contained in/attaching to counter affidavit
and further affidavit f i led by the 1st-38th
Respondents in opposition to the preliminary
objections to hold that the 1st- 38th Respondents are
a s p i r a n t s a n d h a v e l e g a l s t a n d i n g t o
institute/maintain and or prosecute the claim in suit
No. ZMS/GS/2018- (Distilled from additional ground
No. 5).
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3. Whether the lower Court properly evaluated the
evidence of all the parties before arriving at the
conclusion that the 1st -38th Respondents proved
their case to be entitled to the reliefs they sought-
(Distilled from ground No. 2).
4. Whether the Appellants right to fair hearing
guaranteed by Section 36(1) of the 1999 Constitution
of the Federal Republic of Nigeria (as amended), was
breached by the Court below- (distilled from ground
No. 1).
Respondents number 41 filed no brief of argument, at the
hearing of this appeal, there was evidence of service on
them of the hearing date.
The brief of the 42nd Respondent was filed by learned
Counsel Ochidi on the 7th day of March 2019 wherein
Counsel identified a sole issue for determination
reproduced thus:
“Whether the trial High Court of Justice Zamfara
State had the requisite jurisdiction to have
adjudicated in suit NO. ZMS/GS/52/2018 instituted
before it by the 1st -38th Respondents regard being
had to the relevant provisions of the Electoral Act,
2010 (as amended)”.
Apart from the 42nd Respondent in this appeal, it appears
all the parties are in agreement that the issues for
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determination are the issues crafted by the Appellant, I
need to mention that even the 42nd Respondents issue is a
fragment of the issues distilled by the Appellants. In all the
issues nominated by the Respondents are all in accord with
the Appellants issues, even though the Respondents did not
come out clearly to state that they adopt Appellants issues.
Let me go to the submissions of Counsel on the issues.
SUBMISSIONS OF COUNSEL FOR THE APPELLANTS.
ISSUE ONE
Appellants complain under this issue is that the lower
Court lacked jurisdiction to hear and determine the suit of
the Respondents as Plaintiffs, contending that the nature of
the claim does not vest jurisdiction in the State High Court,
that the issue falls within the exclusive jurisdiction of the
Federal High Court.
Learned Counsel for the Appellants submitted that upon a
proper interpretation of the provisions of Section 87 (5) of
the Electoral Act 2010 (as amended) the Court must take
into account the entire provisions of Section 251(1) of the
1999 Constitution. Learned Counsel said a community
reading of Section 251 (1) of the 1999 Constitution and
Section 87 (5)
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of the Electoral Act 2010 (as amended) would reveal that
the Federal High Court and State High Court share
concurrent jurisdiction on pre-election matters only when
the dispute to be resolved falls outside the scope of Section
251(1) (a)-(r) of the Constitution. It was also submitted on
behalf of the Appellants that the jurisdiction of the Federal
High Court becomes activated when the party or parties is
the Federal Government or its agency, the subject matter
of litigation falls within the scope of Section 251 of the
Constitution of the Federal Republic of Nigeria, and the
principal claim is targeted at the Federal Government or its
agency, Counsel relied on the decision in OLADIPO V
NCSB (2009) 12 NWLR (Pt. 1156) 563 at 585,
ODUTOLA V. UNILORIN (2004) 18 NWLR (Pt. 905)
416 at 462, and OBIUWEUBI V. CENTRAL BANK OF
NIGERIA (2011) 7 NWLR (Pt. 1247)465.
Learned Counsel for the Appellants said there is no doubt,
the National Electoral Commission the 3rd Defendant is an
agency of the Federal Government, and the subject matter
of the dispute is the act of the 3rd defendant foreclosing
the submission of the names of the Plaintiffs as successful
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candidates for the election, and the action falls under
Sections 251(1) of the Constitution of the Federal Republic
of Nigeria and Section 87 (9) of the Electoral Act 2010 (as
amended). Counsel submitted that reading through the
statement of claim of the Respondents at pages 26-29 of
the records of appeal, it will be found that the subject
matter falls within the jurisdiction of the Federal High
Court. Coming to the principal reliefs, Counsel referred to
reliefs 3, 4, 5, 6 and 7 in the certificate of judgment
contained at pages 925-929 of the records of appeal to
submit that the principal reliefs are against the
Independent National Electoral Commission and fall under
the jurisdiction of the Federal High Court.
Learned Counsel while referring to the decision in
ATTORNEY GENERAL V. UMAR (2008) 1 NWLR (Pt.
1068) 311, submitted that a Court must be vested with
jurisdiction to adjudicate over a matter that is before it,
that where a Court adjudicates over a matter without the
competence, power and capacity to hear the matter, any
decision arrived at by the Court will be a nullity for reasons
of lack of jurisdiction, in support of this submission Counsel
relied on
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the decisions in ADETONA V. I.G ENT LTD (2011) 7
NWLR (Pt. 1247) 535, and MOBIL PRODUCING NIG
UNLIMITED V. LASEPA (2002) 18 NWLR (Pt. 798) 1.
Learned Counsel also relied on GBILEVE V. ADDINGI
(2014) 16 NWLR (Pt. 1433) 394 to submit that the
matter falls under the jurisdiction of the Federal High
Court having regard to the relief sough and the provisions
of Section 251 (1) (r) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended). The lower Court
therefore lacked power, competence and capacity to hear
and determine the claim. He urged this Court to so hold
and resolve this issue in favour of the Appellants.
ISSUE TWO
Submitting on this issue, learned Counsel for the
Appellants said the lower Court was in grave error, when in
determining the preliminary objection took into
consideration extraneous matters, that the lower Court
relied on the Counter affidavit, further affidavit and
attachments filed by the 1st to 38th Respondents in
opposition to the preliminary objection. Learned Counsel
r e f e r r e d t h i s C o u r t t o P E O P L E S V O I C E
COMMUNICATION LTD V. LAWAL & ANOR. (2004)
LPELR-6036 (CA) at 22-23, Paras B-F OLADEHIN V.
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CONTINENTAL TEXTILE MILLS LTD (1978)
LPELR-2543 (SC) at 15, Paras A-B, SAGAY V. SAJERE
(2000) LPELR-2976 (S.C) at 12 Paras B-C and
MENDRICK V. STATE (2018) LPELR-4554 (CA) at
43-44 E-C.
Learned Counsel referred this Court to ABISI V.
EKWEALOR (1993) NWLR (Pt. 302) 642, and AMAH &
ORS V. NWANKWO (2007) LPELR-8225 (CA) 18-20, to
submit that in dealing with the locus standi of a Plaintiff, it
is his statement of claim alone that has to be considered
with a view to ascertaining whether or not it has disclosed
interest and how much interest has arisen in the subject
matter of the action. Learned Counsel said the duty of a
Judge in determining locus standi is to diligently examine
the statement of claim to see if it discloses a cause of
action, Counsel referred to pages 2221-2223 of the records
of appeal where the learned trial Judge clearly stated that
he relied on paragraph 4(e) of the counter affidavit of the
Respondents paragraphs 4 and 5 of the Counter affidavit in
opposition to the Notice of preliminary objection filed by
the 4th -144th Defendants, and exhibits MAM1-MAM34 in
coming to the conclusion that the lower Court had
jurisdiction. Counsel
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said the lower Court relied on materials it ought not rely
on, that the lower Court was expected to limit itself to the
statement of claim and other materials of the 1st to 38th
Respondents. Counsel relied on paragraphs 1 and 5-15 of
the amended statement of claim dated 13th November
2018 at pages 22-29 of the records of appeal, wherein the
Plaintiff said they were card carrying members of the APC
Zamfara State, and pleaded that some of the members were
desirous of contesting election, Counsel said only aspirants
may institute an action challenging the conduct of a
primary election, learned Counsel referred to GARBA
LADO V. CPC (2011) 18 NWLR (Pt. 1279) 689,
EMENIKE V. PDP & ORS (2012) 12 NWLR (Pt. 1315)
556 at 594, ADEBAYO & ORS V. PDP (2013) 17 NWLR
(Pt. 1382) 1 at 45 and EMEKA V. OKADIGBO (2013)
18 NWLR (Pt. 1382) 1. Learned Counsel urged this Court
to resolve this issue in favour of the Appellants and hold
that the 1st to 38th Respondents were not aspirants within
the clear contemplation of Section 156 of the Electoral Act
as amended, the Respondents therefore lack the legal
standing to institute the action. He urged that the suit be
struck out.
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CA)
ISSUES THREE AND FOUR
Issues number three deals with the way the evidence led by
the parties at the trial was evaluated, Appellant therefore
invited this Court to determine whether the lower Court
properly evaluated the evidence and ascribed the
appropriate probative value to same, and issue number four
is whether the right to fair hearing of the Appellants was
violated by the lower Court.
The learned Counsel for the Appellants argued that the
lower Court completely failed to evaluate the evidence and
this failure occasioned substantial miscarriage of justice. In
particular, Counsel referred us to pages 2208-2254 of the
records of appeal where Counsel said the grievance of the
Appellants could be unearthed. Counsel said the lower
Court from the records referred to completely failed,
neglected, and omitted to properly evaluate the evidence,
that at page 2234 lines 8 to page 2253 lines 25 the
evidence of the parties feature prominently, the arguments
canvassed by the respective Counsel for the parties, the
issues sought to be determined to reach a fair and just
conclusion on the claim, Counsel said the Court had the
advantage of going through
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CA)
the materials of the parties in order to arrive at a fair and
just conclusion. Rather than so doing, Counsel said the
learned trial Judge adopted an approach which visited
injustice to the claim of the Appellants, the Court just
casually concluded that the plaintiffs proved their case
against the defendants, Counsel relied on the words of the
learned trial Judge at pages 2253-2254 line 26.
Learned Counsel for the Appellants contended that there
was no attempt by the learned trial Judge to concrete his
belief on any pedestal because he did not show any
evidence of evaluation of the evidence, his conclusion was
scanty and therefore not justified having regard to the
evidence. Counsel concluded that the learned trial Judge
had a duty to evaluate the various pieces of evidence before
the Court. Counsel relied on the decision in OLADEHIN V.
CONTINENTAL TEXTILE MILLS LTD (1978)
LPELR-2543 (SC) at 15, and ABISI V. EKWEALOR
(1993) NWLR (Pt. 302) 642. Counsel said once there is
no evidence of evaluation the decision reached by the Court
will not stand, he cited, AREGBESHOLA V. OYINLOLA
(2011) 9 NWLR (Pt. 1253) 458 at 482.
Again Counsel submitted that where it is obvious that
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012(
CA)
the lower Court failed to evaluate the evidence led by the
parties at the trial Court, the Appellate Court will intervene
and conduct proper evaluation of the evidence, he relied on
GABRIEL NDIBE & ANOR V. PARTICK SUNDAY
NDIBE (2008) LPELR-4178 (CA).
Counsel for the Appellants referred to the evidence of
Alhaji Ibrahim Birnin Magaji, sole witness for the 1st to
38th Respondents, his witness deposition made on the 13th
day of November 2018 found at pages 30-36 of the
supplementary records of appeal, Counsel relied on
paragraphs 11 and 12 of the witness statement on oath, the
witness according to learned Counsel gave insight into the
conduct of the primary elections in Zamfara State between
3rd and 7th October 2018, in the said paragraphs
Respondents said seven man Committee was appointed to
supervise the primary elections, that primaries were
conducted and the 3rd defendant supervised the conduct of
the primaries on 3rd and 7th October 2018.
Learned Counsel for the Appellants said the evidence of
PW1 did not help the case of the 1st to 38th Respondents
who insisted that primary elections were conducted.
Counsel conceded that a political party may
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9) LP
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012(
CA)
take advantage of the provisions of sections of Section
31(1) of the Electoral Act to present candidates for elective
offices under the 1999 Constitution (as amended), in taking
such advantage, the political party must comply with the
provisions of Section 87 (1) of the Electoral Act, learned
Counsel went further to reproduce the provisions of Section
31(1) and 87 (1) of the Electoral Act 2010 (as amended) to
fortify his submissions, and submitted that when a law
creates a right and provides a procedure by which that
right may be exercised, that procedure prescribed must be
followed, he relied on the decision in OBUOBIPI V.
OBUFORIBO (2010) All FWLR (Pt. 546) 543 at 559 in
support of this submission.
Under cross examination by learned Counsel for the
Appellants, PW1 stated at page 2133-2136, 2138-2140,
2142-2142 of the records of appeal that he participated as
a contestant in the 2019 general elections as a candidate
for House of representatives representing Birnin
Magaji/Kaura Federal Constituency, he went further to list
out the other elective offices in the State, and that his
statement on oath was correct, and he did not lie to the
Court, that
19
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012(
CA)
exhibit 3 is a list not a report, that Lawal Liman is the
Chairman of Zamfara State APC, and was neither a member
of the National Working Committee, nor a member of any
of the two committees appointed by the National Working
to conduct primaries in Zamfara State, Pw1 also stated that
he was not aware if Lawal Liman was appointed returning
officer, that in Exhibit 6, Lawal Liman signed the list of
successful of candidates, and the name of PW1 appeared as
number 4 in exhibits 3 and 3a. Pw1 said he only knew that
he won the primary elections from his testimony under
cross-examination.
Learned Counsel said the witness for the Plaintiffs admitted
that Lawal Magaji is still the Chairman of APC in Zamfara
State, that exhibit 2 is the APC Constitution and there is a
procedure for conducting primary elections under the APC
Constitution at pages 74-77 of the APC Constitution.
Again, learned Counsel for the Appellants went further to
dwell on the cross-examination where PW1 said he saw
exhibit 1A Regulation 14 (f) and confirmed that it is the
Electoral Committee of the National Working Committee
that should collate results and not the State Chairman of
the party.
20
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012(
CA)
Witness also said he saw exhibit 4 a document emanating
from Independent National Electoral Commission, he said
he wouldn’t know his reaction to the said exhibit 4.
Learned Counsel for the Appellants said the evidence of
PW1 is not credible because on his own showing, it was the
state organ of the party that conducted primaries of 3rd
and 7th days of October 2018 and sent list of successful
candidates as required by Sections 31 and 87 of the
Electoral Act 2010 as amended to the 41st Respondent, the
Zamfara State Resident Electoral Commissioner. Learned
Counsel submitted that the evidence of PW1 is incredible
he was blank and said he did not know anything at lines 13
page 2142 of the records of appeal, Counsel relied on
FATUNBI & ANOR V. OLANLOYE & ORS (2004) 12
NWLR (Pt. 887) page 229 (SC), and AWURE V.
ILEDU (2008) 11 NWLR (Pt. 1098) 249, 285 Paras C-
F, in urging this Court to hold that the evidence of PW1 is
an affront to reason and intelligence and it must not be
accorded any credibility, he so urged this Court.
Learned Court for the Appellants also referred to Exhibits 1
electoral guidelines issued by the 39th Respondent, the
21
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9) LP
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012(
CA)
Constitution of 39th Respondent and receipt for CTC of
document issued by INEC, to submit that the exhibits did
not help the case of the 1st to 38th Respondents, the
exhibits did not constitute from the conduct of primary
elections in Zamfara State by the 39th Respondent.
Counsel submitted that it was Lawal Liman 26th
Respondent in this Appeal and Chairman of the 39th
Respondent and a candidate at the primary elections who
submitted exhibit 6 forwarding the 37 names to the
successful candidates of 39th Respondent to the Zamfara
State Resident Electoral Commissioner the 41st
Respondent. The 1st-38th Respondents according to
learned Counsel omitted to call vital witnesses to establish
their claim that primary elections were in fact conducted,
such omission is fatal to the case of the Respondents, he
rel ied on NGORKA V. AG IMO STATE (2014)
LPELR-22532 (CA), OGUDO V. STATE (2011)
LPELR-860 (SC) at 28-29 Paras E-A, DIAMOND BANK
V. OKPALA (2016) LPELR-41573 (CA) 12-13 Para B.
Counsel submitted that failure by a party to call vital
evidence that is available is fatal and raises presumption
against the Respondents that if they are called their
evidence would be
22
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9) LP
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012(
CA)
unfavorable to the case of the Respondents. Counsel said
the decision of the lower Court giving Judgment to the
Respondents is perverse and must be set aside. It was also
the contention of the Appellant that where a Judgment is
found to be perverse it must be set aside on appeal, he
referred this Court to the decisions in EBE V. EBE (2004)
3 NWLR (Pt. 860) Pg. 215, ADIMORA V. AJUFO (1988)
3 NWLR ( Pt. 80) 1 at 16, NEPA V. OSOSANYA (2004)
1 SC (Pt. 1)159 at 175, AGBOMEJI V. BAKARE (1998)
9 NWLR (Pt. 564) 1 at 8, ALADE V. SOFOLARIN &
ORS (2015) LPELR-25008, NNADOZIE & ORS V.
MBAGWU (2008) LPELR-2055 (SC), ARE V. IPAYE
(1990) 3 SC (Pt. 11) 109 and ATOLAGBE V. SHORUN
(1985) NWLR (Pt 2) 360, and urged this Court to set
aside the Judgment because it is punctuated by flagrant
and fatal errors it is therefore perverse, he therefore urged
this Court to so hold and resolve issues 3 and 4 in favour of
the Appellants against the Respondents.
Learned Counsel for the Appellants referred to the
evidence led by the defense at the Court below, Counsel
drew particular attention to the evidence of DW1 witness
for the 41st Respondent, Salman Uwaisu, the sworn
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9) LP
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012(
CA)
deposition of DW1 made on the 13th day of November
2018, found at pages 531-535 of the records of appeal.
Counsel said the evidence of DW1 is to the effect that, the
39th Respondent’s electoral Committees of the National
Working Committee made two unsuccessful attempts to
conduct primaries on the 3rd and 7th days of October 2018
for the candidates in Zamfara State, but under cross
examination by the Counsel for the Defendants now said
the Committees conducted primary elections and returned
list of successful candidates to the 39th Respondent.
Learned Counsel for the Appellants said with the consent of
the parties, the 41st Respondent, Independent National
Electoral Commission tendered exhibits 7, 7A, and 7B
(certified true copies of Report of All Progressives Congress
(APC) Primaries held on the 3rd and 7th days of October
2018, the exhibits corroborated exhibit 4, that the 39th
Respondent did not conduct primary elections or present
candidates for the 2019 general elections.
Learned Counsel referred to exhibit 4 at page 2337, titled
“Failure to conduct Primaries in Zamfara State within the
stipulated time frame”.
24
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9) LP
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012(
CA)
Learned Counsel said exhibit 4 is a letter from the 41st
Respondent dated 9th October 2018 that the 39th
Respondent failed to conduct primary elections to
determine its candidates for the 2019 general elections.
Learned Counsel reproduced and relied on paragraphs 2
and 3 of the of the said exhibit 4.
Counsel for the Appellants also referred to exhibit 7A and
7B, that in an effort to react to the said exhibit 4, the 39th
Respondent said it conducted primaries by consensus, and
promised to submit list on 18th October 2018, there was no
such list according to Counsel, this Counsel said confirms
the contents of exhibits 4, 7A and 7B.
Learned Counsel for the Appellants said from the contents
of exhibits 4, 7, 7A and 7B, it was clear that the 39th
Respondent did not conduct primaries, he therefore urged
this Court to so hold.
Learned Counsel also made submissions on the evidence of
DW2, Senator Kabiru Garba Marafa, sworn statement of
17th December 2018 at page 1306-1317 and oral evidence
page 2116 lines 1-16 of the records of appeal. Counsel said
the entire evidence of DW1 is material because it is devoid
of contradictions and goes to show that the Committee
25
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9) LP
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012(
CA)
set up to conduct primaries failed to do so after two
unsuccessful attempts. The evidence clearly showed the
39th Respondent failed to conduct primary elections in
Zamfara State, therefore establishing the claim of the
Appellants that no primary elections were conducted. The
evidence of DW2 also supports exhibits 4, 7,7A and 7B, that
the 1-38th Respondents went out of their way and
purported to conduct primary elections. Counsel said the
1st to 38th Respondents conducted their own local version
of primary election. Learned Counsel submitted that
exhibits 4, 7, 7A and 7B have established Appellants claim
that there were no primary elections in Zamfara State,
Counsel relied on KIMDEY & ORS V. MIL GOV OF
GONGOLA STATE & ORS (1988) 2 NWLR (Pt. 77) 445,
and VINCENT U. EGHAREVBA V. DR. OROBOR
OSAGIE (2009) 18 NWLR (Pt. 1173) 299 SC, to submit
that documentary evidence is the best evidence, and it is
preferred to oral evidence, that documents do not lie and
must be preferred against the oral evidence of DW1 who
sought to alter the contents of his testimony under cross-
examination.
Learned Counsel therefore urged this Court to resolve
issues
26
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9) LP
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012(
CA)
3 and 4 in favour of the Appellants and allow the appeal.
SUBMISSIONS OF COUNSEL FOR THE 1ST TO 38TH
RESPONDENTS.
ISSUE ONE
Learned Counsel for the 1st -38th while submitting on issue
number said the Appellants contended that the lower Court
had no jurisdiction to hear and determine the Respondents
suit, that jurisdiction to hear and determine the suit is
vested in the Federal High, learned Counsel further
submitted that the legion of authorities cited by the
Appellant are distinguishable, he submitted that the
Appellants argument is misleading and does not represent
the extant position of the law. Counsel relied on the
decision in MADUKOLU V. NKEMDILIM (1962) 1 ALL
NLR 581, to submit that the claim of the 1st -38th
Respondents were rightly initiated before the Zamfara
State High Court, and that the Court is vested with
jurisdiction to hear and determine the claim, he referred to
the claims of the 1st -38th Respondents at page 294-301 of
the records of appeal. Learned Counsel further submitted
that the power conferred on the Federal High Court to
exercise jurisdiction is a general power, while jurisdiction
to hear and determine pre-election disputes is a
27
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012(
CA)
special provision, and that notwithstanding the involvement
of Federal Government or its agency, the State High Court
has concurrent jurisdiction with the Federal High Court,
learned Counsel said this is the interpretation given to the
provisions of Section 87(9) of the Electoral Act 2010 (as
amended). Counsel referred to the Supreme Court
decisions in OLUGBEMI V. LAWRENCE & ORS (2017)
LPELR 42361 (SC), JEV V. IYORTYOM (2014) ALL
FWLR (Pt. 747) 749, and LAU V. PDP (2018) NWLR
(Pt. 1608) 60. Learned Counsel said Section 87(9) of the
Electoral Act 2010 (as amended) gives the aspirant
opportunity to make choice with respect to Court when he
would lodge his grievance in pre-election matters ranging
from the Federal High Court, Federal Capital Territory
High Court and the State High Court. Counsel is of the
view that choice of Court of trial is no longer a subject of
jurisprudential controversy, he also said of all the legion of
authorities cited by learned Court, the only authorities
having to do with pre-election matter is the decision in
GBILEVE & ANOR V. ADDINGI & ANOR (2014) 16
NWLR (Pt. 1433) 394. Counsel said the decision in
28
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9) LP
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012(
CA)
LAU V. PDP (supra) has provided final answer to the
issue, he therefore urged this Court to resolve this issue in
favour of the Respondents, against the Appellants.
ISSUE TWO.
Submitting on issue number two, learned Counsel said the
lower Court did not place reliance on the Counter affidavit
and further affidavit and exhibits of the 1st to 38th
Respondents in order to arrive at a decision that the
Respondents had locus standi to bring the suit, Counsel
said from the depositions in paragraphs 1, 5 to 15, of the
1st to 38th Respondents amended statement of claim.
Counsel said the reply to statement of defense filed by the
plaintiffs was considered by the lower Court, and that reply
to statement of defense forms part of the pleadings of a
Plaintiff, Counsel relied on Order 17 Rule 1 of the High
Court (Civil Procedure) Rules 2014 of Zamfara State, and
the dec is ion in KALU V. AGU & ORS (2014)
LPELR-22849 (CA) in support of this submission. Counsel
again said both the amended statement of claim and the
reply of the 1st to 38th Respondents must be read together
in order to understand the case of the Respondents, he
referred this Court to the
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9) LP
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012(
CA)
decision of this Court in PEACOCKS EDUCATIONAL
CONSULTANTS & ORS V . ETONYEAKU &
ANOR. (2018) LPELR-46113 (CA) 20-22. And AGI V.
PDP & ORS (2016) LPELR-42578 (SC) 8.
Learned Counsel therefore submitted that a community
reading of the amended statement of claim and the reply
will show that the 1st to 38th Respondents are aspirants at
the APC primary elections and therefore have locus standi
to bring the action. In support of this contention Counsel
relied on Section 87(9) of the Electoral Act 2010 (as
amended), UKACHUKWU V. PDP (2014) 17 NWLR (Pt.
1435) 134 at 201-202, PDP V. SYLVA (2012) NWLR
(Pt. 1316) 125, ALHAJI WUSHISHI V, ENGR
MOHAMMED IMAM (2017) JSCNLR VOL 5 Page 25.
Learned Counsel for the 1st to 38th Respondents urged this
Court to resolve this issue in favour of the Respondents
against the Appellants and hold that the lower Court acted
within its jurisdiction to hear and determine the
Respondents suits, he so urged the Court.
ISSUES THREE AND FOUR.
Submitting on these two issues learned Counsel for the 1st
to 38th Respondents said the grievance of the Appellants
that the lower Court failed to evaluate the evidence led at
the
30
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012(
CA)
trial was not correct. Counsel said the lower Court properly
reviewed, evaluated and appraised the evidence led by the
parties.
Learned Counsel said a trial Court is not allowed to go on a
wild goose chase, it must limit itself to the pleadings of the
parties, that neither the Court nor the parties can go
outside their pleadings or take benefit of argument that
does not flow from the evidence led or from the judgment
of the Court. In support of this submission Counsel relied
on the decision in OGIDA V. OLIHA (1986) 1 NWLR (Pt.
19 786 and UKPO V. NGAJI (2010) 1 NWLR (Pt. 1174)
202. With regards to the submissions of the Appellants that
the evidence of the parties was not put on an imaginary
scale, learned Counsel for the 1st to 38th Respondents
submitted that a trial Court or Tribunal needs not state
expressly that it is putting the case of the parties on an
imaginary scale of justice, that it is a matter of style of
writing, he relied on OKOYE V. OKONKWO (2009) 6
NWLR (Pt. 1136) 130 at 143-144. Counsel further
submitted that all the Court is required to do is to clearly
state the case of the parties, then evaluate the evidence
taking into account the pleadings
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CA)
of the parties and the process of arriving at a decision.
Once this is done it is taken that the learned trial Judge has
placed the evidence on an imaginary scale, he said the
Court is at liberty to adopt any style as long as the duty to
evaluate the evidence of the parties is discharged, he cited
OTUKPO V. JOHN (2012) 7 NWLR (Pt. 1299) 357 at
378.
Counsel referred to exhibit 7A of 19th October 2018
addressed to the Chairman of INEC and said the party
agreed on its candidates by consensus, that there was
consensus arrangement that produced its candidates for
the elections, Counsel said the 39th to 40th Respondents
did not frontload or tender any results, they only rested
their case on the case of the 1st to 38th Respondents.
With regards to the evidence at the trial, Counsel said the
lower Court properly reached a decision based on the
evidence of the parties before the Court. Counsel relied on
Section 134 of the Evidence Act 2011 and the decision in
EYA & ORS V. OLOPADE & ANOR (2011) LPELR-1184
(SC) 34-35. He also submitted that while it is the duty of
the Respondents to prove the facts pleaded, and must rely
on their case and not the weakness of
32
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012(
CA)
the case of the defendants, it is also the law that the
burden of proof is not static, it shifts from one party to the
other. He referred to Section 133 (1) and (2) of the
Evidence Act and the case of HARUNA V. MODIBBO
(2004) 16 NWLR (Pt. 900) 487 at 556.
In discharging the burden of proof learned Counsel for the
1st to 38th Respondents said they relied on the oral
evidence of PW1, DW1, DW2 and documentary exhibits
tendered by the parties. Counsel said PW1 gave evidence
and adopted his witness statement at page 2-7 of the
records of appeal vol 1, he was cross examined as found at
pages 2131-2143 of the records, learned Counsel said the
Respondents tendered exhibit 3A. Counsel said the list of
successful candidates at the primaries is found at pages
2326-2328 vol. 5. Counsel said the document was never
discredited at the trial, that DW1, the witness called by the
Appellants acknowledged the document as their own, that
the evidence of DW1 is at page 2147-2156 of the records of
appeal.
Counsel submitted that the 39th Respondent conducted
direct primaries on the 3rd and 7th days of October 2018,
he relied on paragraphs 5,6,7,8,9,10,11, 12 and 13 of the
33
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9) LP
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012(
CA)
amended statement of claim of the 1st to 38th
Respondents, at pages 296-302 of the records of appeal,
that in paragraph 12 of the amended statement of claim, it
was clearly stated that the 39th Respondent conducted
primaries and Candidates for the 2019 general elections
emerged, that the general elections were supervised by the
3rd Defendant and results were produced. Counsel relied
on paragraph 13 of the amended statement of claim.
Learned Counsel also referred to other exhibits tendered,
exhibits 1, 2, 3, and 3A evidencing guidelines for the
elections, showing that the 1st Defendant under the
supervision of the 3rd Defendant conducted primary
elections. Learned Counsel said PW1 under cross
examination admitted that the 39th Respondent conducted
primary elections, he referred to page 2134 vol. 5 where
this piece of evidence can be found. He also submitted that
PW1 said the National Working Committee is responsible
for conducting primary elections, he referred this Court to
page 2132-2133 of the records of appeal.
Learned Counsel said throughout the trial neither the
Appellants nor any other party challenged the evidence of
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9) LP
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012(
CA)
PW1 that the candidates emerged winners from the
primary elections conducted on the 3rd and 7th days of
October 2018. He submitted that the evidence of DW1 and
2 supported the testimony of PW1. That since the
defendants failed to call evidence in rebuttal of the
evidence of PW1, they are deemed to have abandoned their
defense, he rel ied on CBN V. OKOJIE (2015)
LPELR-24740 (SC) 34, that since the 40th to 42nd rested
their case on the case of the 1st to 38th Respondents and
failed to call evidence they are deemed to have abandoned
their defense, he further rel ied on the case of
NEWSBREED ORGANISATION LTD V. ERHOMOSELE
(2006)5 NWLR (Pt. 974) 499 at 545.
Learned Counsel also submitted that the allegation of
violence during the conduct of primaries mentioned by
DW1 was not established, he submitted that violence is a
criminal offence that must be proved beyond reasonable
doubt. He relied on Section 135(1) of the Evidence Act,
DANTIYE V. KANYA (2009) NWLR (Pt. 1130) 13 at 32,
and YUSUF V. OBASANJO (2005) 18 NWLR (Pt. 956)
96 at 188, he also submitted even if violence occurred in 6
out of 147 wards, that would not be enough to invalidate
the primary elections.
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CA)
Commenting on exhibit 7 and 7A, learned Counsel for the
1st to 38th Respondents said the credibility of the exhibits
had been demolished by DW1 under cross examination, the
purported suspension of primary election was therefore of
no moment. Counsel said by the provisions for Section
87(4) (b)(ii) and (c) (ii) of the Electoral Act 2010, (as
amended) there is no provision for a political party or
election management body to suspend primary elections,
that the evidence of DW1, supports the case of the 1st to
38th Respondents.
Learned Counsel said primary elections were conducted by
direct method not consensus from the evidence of DW1.
Learned Counsel said DW1 clearly stated that primary
elections were conducted by Engr. Abubakar Fari, and
Major Abubakar Sani Gana, this evidence, counsel said is in
support of the case of the 1st to 38th Respondents.
Commenting on Exhibit 4, Counsel said is documentary
hearsay, that DW2 neither made the document nor was he
the recipient of the same the Court cannot therefore attach
any probative value to the document irrespective of the fact
that the document is certified. Counsel relied on
OKEREKE V. UMAHI (2016) LPELR- 40035 (SC).
Learned Counsel also said similar fate befalls exhibit 6.
36
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9) LP
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012(
CA)
Learned Counsel relied on the testimony of DW1 to content
that INEC Zamfara State monitored and received results of
the primary elections conducted in Zamfara State during
the APC primary elections.
Finally, on this issue learned Counsel said from the
contents of exhibit 3A, and the evidence of DW1, it is clear
that there was primary elections in Zamfara State which
produced the 1st to 38th Respondents, he urged this Court
to so hold, and resolve issue number three in favour of the
1st to 38th Respondents. Submitting on issue number Four,
learned Counsel said the Appellants did not specifically
allege denial of fair hearing in their brief, they are
therefore deemed to have abandoned the argument.
Counsel however cited legion of authorities to contend that
Appellants right to fair hearing was not denied, he cited
NEWSWATCH COMMUNICATIONS LTD V. ALH ALIYU
IBRAHIM ATTAH (2006) ALL FWLR 581, and
ORUGBO V. UNA (2002) 16 NWLR (Pt 792) 175 at
211-212.
He finally urged that this issue be resolved in favour of the
1st to 38th Respondents against the Appellants, and that
the appeal be dismissed.
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CA)
SUBMISSIONS OF COUNSEL FOR THE 39TH TO
40TH RESPONDENTS.
ISSUE ONE.
Learned Counsel for the 39th to 40th Respondents adopted
word for word the submissions of learned Counsel for the
1st to 38th Respondent, without any slightest modification.
I do not think it is proper to repeat the submissions, since
the argument of the 1st to 38th Respondents was
reproduced word for word on this issue, I also adopt the
submissions of learned Counsel for the 1st to 38th
Respondents as the argument of learned Counsel for the
39th to 40th Respondents on this issue.
Learned Court for the 39th to 40th Respondents also urged
that this issue be resolve in favour of the Respondents.
ISSUE TWO.
Learned Counsel for the 39th to 40th Respondents adopted
word for word the submissions of learned Counsel for the
1st to 38th Respondent, without any slightest modification.
I do not think it is proper to repeat the submissions, since
the argument of the 1st to 38th Respondents was
reproduced word for word on this issue, I also adopt the
submissions of learned Counsel for the 1st to 38th
Respondents as the argument of learned Counsel for the
39th to 40th Respondents on this issue.
38
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CA)
Learned Court for the 39th to 40th Respondents also urged
that this issue be resolved in favour of the Respondents
against the Appellants.
ISSUES THREE AND FOUR
Learned Counsel for the 39th to 40th Respondents adopted
word for word the submissions of learned Counsel for the
1st to 38th Respondent, without any slightest modification.
I do not think it is proper to repeat the submissions, since
the argument of the 1st to 38th Respondents was
reproduced word for word on this issue, I also adopt the
submissions of learned Counsel for the 1st to 38th
Respondents as the argument of learned Counsel for the
39th to 40th Respondents on this issue. The only noticeable
difference is that what the 1- 38th Respondents addressed
issue number 4, learned Counsel for the 39th to 40th
Respondents decided to flow with the pattern of argument
adopted by the Appellants other than this slight
inconsequential difference, learned Counsel merely copied
and pasted the intellectual property rights of learned
Counsel for the 1st to 38th Respondents.
Learned Court for the 39th to 40th Respondents also urged
that issues three and four be resolved in favour of the
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Respondents against the Appellants, he also urged that the
appeal be dismissed.
SUBMISSIONS OF COUNSEL FOR THE 41ST
RESPONDENT.
The 41st Respondent in this appeal did not file any brief of
argument.
SUBMISSIONS OF COUNSEL FOR THE 42ND
RESPONDENT
Learned Counsel for the 42nd Respondent crafted one issue
on jurisdiction and urged that the appeal be allowed on the
ground that the lower Court had no jurisdiction. The
argument canvassed by learned Counsel for the 42nd
Respondent is similar to the argument of the Appellants
contesting the jurisdiction of the lower Court, he urged that
the appeal be allowed and the Judgment of the lower Court
be set aside. I must mention that learned Counsel identified
the role of a Respondent in appeal and stated that in the
face of obvious lack of jurisdiction in the lower Court to
hear and determine the matter, the 42nd Respondent needs
to ask specifically that the decision of the lower Court be
set aside, he so urged this Court.
APPELLANT’S REPLY.
In the reply brief of the Appellant, learned Counsel
embarked of a repeat of his submissions on jurisdiction and
sought to
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draw distinction between the instant case and the legion of
authorities cited and to contend that the lower Court had
no jurisdiction.
On evaluation of evidence, learned Counsel for the
Appellants referred to the submissions of Counsel for the
1st to 38th Respondent’s submission that the failure to call
evidence and rest the Appellants case on that of the
Respondents amounted to abandoning the i r
defense. Counsel said, where a defendant rests his case on
that of the Plaintiff, such a stance is a legal strategy and
not a mistake, he relied on OKPOKO COMMUNITY
BANK V. IGWE (2013) 15 NWLR (Pt. 1376) 167 at
188.
With regards to allegations of violence, learned Counsel for
the Appellants said their contention was that primary
elections did not hold, the defense would not therefore be
required to prove violence beyond reasonable doubt,
learned Counsel said the contention of learned Counsel for
the Respondents is misconceived. He urged this Court to
allow the appeal.
Having taken the submissions of Counsel in this appeal, I
must make it very clear that from the submissions of
Counsel for the Appellants and the Respondents, the issues
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nominated by the Appellants for discourse in this appeal
will effectively and effectually resolve the issues in
controversy between the contending parties, I therefore
adopt the Appellants issues for determination as the issues
to resolve in the determination of this appeal. I will now
proceed to resolve the issues.
RESOLUTION OF ISSUES
ISSUES ONE & TWO.
The law has remained very well settled beyond per
adventure, by a long and unbroken chain of judicial
authorities of the Supreme Court and this Court to the
unarguable conclusion that jurisdiction is the vires, the
power, that a Court of law has and possesses which enables
it to take cognizance of, hear and adjudicate on any matter
placed before it for its determination. That is, jurisdiction is
the authority that a Court of law has in order to decide any
matter that is laid before it in a formal way for its decision
on such matters.
Therefore, where any Court lacks the jurisdiction to try any
matter filed before it, but goes ahead to determine it, such
a decision amounts to nothing as it will be declared a
nullity by an appellate/higher Court, hence it will be
tantamount to an exercise in futility.
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To underscore the criticality and quintessence of
jurisdiction to adjudication, the Supreme Court in a
plethora of decided authorities, one of which is Hon.
Ehioze Egharevba v. Hon. Crosby Osadulor Eribo &
Ors (2010) 9 NWLR (pt.1199) 411; (2010) LPELR
-9716 (SC); (2010) 3 SCNJ (pt.ii) 441 @ 453-452,
reiterated the law succinctly, per Adekeye, JSC., that:
"Jurisdiction is a term of comprehensive import
embracing every kind of judicial action. It is the
power of a Court to decide a matter in controversy
and presupposes the existence of a duly constituted
Court, with control over the subject matter and the
parties. Jurisdiction also defines the power of the
Court to inquire into facts, apply the law, make
decisions and declare judgment. Jurisdiction is
equally to Court, what a door is to a house. That is
why the question of a Court's jurisdiction is called a
threshold issue, because it is at the threshold of the
temple of justice. Jurisdiction is a radical and
fundamental question of competence, for if the Court
has no jurisdiction to hear the case, the proceedings
are and remains a nullity however well-conducted and
brilliantly decided they
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might have been. A defect in competence is not
intrinsic but rather extrinsic to adjudication. Oloba v.
Akereja (1988) 3 NWLR (pt. 89) pg.508; Oloriode v.
Oyebi (1984) 1 SCNLR pg.390; Ezomo v. Oyakhire
(1985) 1 NWLR (pt.2) pg. 105; Petrojessica
Enterprises Ltd v. Leventis Technical Co Ltd (1992) 2
SCNLR pg.341; Barclays Bank v. Central Bank of
Nigeria (1976) 6 SC pg.175; African Newspapers of
Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR
pt.6 pg.137; Adeleke v. OSHA (2006) 16 NWLR
pt.1006 pg.608; Attorney General Anambra State v. A-
G Federation (1993) 6 NWLR pt. 302 pg.692; Saleh v.
Monguno (2003)1 NWLR pt. 801 pg. 221. The issue of
jurisdiction being fundamental can be raised and
challenged at any stage of the proceedings in the
lower Court, in the Court of Appeal or even for the
first time in the Supreme Court. The issue of
jurisdiction being so pivotal can be raised suo motu
by the Court so long as the parties are accorded the
opportunity to react to the issue."
The eminent and revered jurist Mohammed Bello, C.J.N. of
blessed memory, in the judicial words on marble on
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jurisdiction, in Chief Utuedo Utih & 6 Ors v. Jacob U.
Onoyivwe & 5 Ors(1991) 1 SCNJ 25 @ 49, had stated
eloquently and allegorically that:
"Jurisdiction is the blood that gives life to the survival
of an action in a Court of law and without jurisdiction,
the action will be like an animal that has been
drained of its blood. It will cease to have life and any
attempt to resuscitate it without infusing blood into
it, would be an abortive exercise."
The reason for the above stated allegoric analogy is not far
fetched. And it is because the life of the flesh is in the
blood. In other words, jurisdiction is the life in the action,
placed before the Court of law for adjudication, such that
the absence of it, renders the action lifeless. In the locus
classicus - Madukolu & Ors v. Nkemdilim (1962) All
NLR 581; (1962) 2 SCNLR 341 @ 587-588, the Federal
Supreme Court, had held on jurisdiction and competence of
a Court, thus:
"Put briefly, a Court is competent when -
a. It is properly constituted as regards members and
qualification of the members of the bench, and no
member is disqualified for one reason or another; and
b. The subject matter of the case is within its
jurisdiction, and there is no feature in the case which
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prevents the Court from exercising its jurisdiction;
and
c. The case comes before the Court initiated by due
process of law, and upon fulfillment of any condition
precedent to the exercise of jurisdiction."
The three conditions stated above must co-exist in respect
of any action filed in a Court of law, before the Court can
be invested or clothed with proper competence and the
requisite jurisdiction, to entertain and adjudicate on it. The
Military Administrator, Benue State & 20 Ors v.
Captain Clement Abayol (Rtd) (2001) FWLR (pt.35)
604; (2001) 5 NWLR (pt.705) 19; Ishola v. Ajiboye
(1994) 19 LRCN 35; (1994) 6 NWLR (pt.352) 506;
Matari v. Dan Galadima(1993) 3 NWLR (pt.281) 266;
Attorney General, Anambra State v. Attorney General,
Federation (1993) 6 NWLR (pt.302) 692; Odofin v.
Agu (1992) 3 NWLR (pt.229) 350.
Furthermore, the law has been well settled to the effect
that in order for the Court to determine whether or not it
possesses the required competence to determine the cause
of action placed before it, the processes that were filed in
order to activate its jurisdiction, which it needs to examine,
are the writ of summons and the statement
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of claim only. And where the action was begun by
originating summons, then it is the reliefs sought therein as
well as the depositions contained in the affidavit in support
of the originating summons, that would be examined in
order to discern if the Court has the jurisdiction to
entertain and determine the action. These are the only
processes from which the facts giving rise to the cause of
action can be gleaned for the Court to inquire into and
determine whether it has the jurisdiction to determine the
plaintiff's action. This is because, it is the plaintiff who
invokes the constitutional right for a determination of his
right and accordingly the activation of the judicial powers
vested in the Courts by the Constitution of the Federal
Republic of Nigeria, 1999 as amended. That is, it is the
plaintiff's demand and not the defendant's answer to that
demand that is a relevant issue for consideration at that
stage. Therefore, ordinarily, it is the claim of the plaintiff
only and not the defence, which the Court looks at to
determine its jurisdiction. Adeyemi & Ors v. Opeyori
(1976) LPELR - 171 (SC) @ 21-22; Attorney General,
Oyo State v. Nigeria Labour
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9) LP
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Congress (2003) 8 NWLR (pt.821) 1; Akande & 2 Ors
v. Busari Alagbe & Anor. (2001) FWLR (pt.38) 1352;
Attorney General Federation v. Guardian Newspaper
Ltd & 5 Ors (1999) 9 NWLR (pt.618) 187; Messers N.
V. Scheep & Anor v. The MV 'S Araz & Anor (2000) 15
NWLR (pt.691) 622; (2000) FWLR (pt.34) 556;
National Electric Power Authority v. Atukpor (2001)
FWLR (pt.20) 626; General Sani Abacha & 3 Ors v.
Chief Gani Fawehinmi (2000) 6 NWLR (pt.660) 228;
(2000) FWLR (pt.4) 557; Okulate & 4 Ors v. Awosanya
& 2 Ors (2000) 2 NWLR (pt.646) 530; Senator Yakubu
Lado & Ors v. Congress for Progressive Change & Ors
(2011) LPELR- 8254 (SC) @ 35; Inakoju v. Adeleke &
Ors (2007) 4 NWLR (pt.1025) 1; Jev v. Iyortyom
(2014) 14 NWLR (pt.1428) 575.
Locus standi connotes the legal capacity which a person
has to enable him file an action in a Court of law. There is a
symbiotic relationship between jurisdiction and locus
standi. Hence in the determination of whether or not a
person has the legal capacity to file an action in a Court of
law, the plaintiff's statement of claim is the only process
that will be considered by the Court.
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That is, it is from the averments in the statement of claim
only which the Court carefully scrutinizes in order to
decipher whether or not it discloses the plaintiff's interest
and how that interest arises in the subject matter of the
action filed by him. Thomas v. Olufosoye (1986) 1
NWLR (pt.18) 669; Adesokan & Ors v. Prince
Adegorolu & Ors (1997) LPELR -151 (SC); Abisi & Ors
v. Ekwealor & Anor (1993) LPELR -44 (SC); Owodunni
v. Registered Trustees of Celestial Church of Christ
(2000)10 NWLR (pt.675)315; (2000) 6 S.C. (Pt.II) 60.
In the instant matter, the appellants who were defendants
at the Court below, had filed a notice of preliminary
objection to the effect that the 1st - 38th respondents who
were the plaintiffs thereof, had no locus standi for
instituting their action against the former. The appellants
filed an affidavit in support of their notice of preliminary
objection. In their response to it, the 1st- 38th respondents,
filed a counter affidavit and a further affidavit against the
appellants' notice of preliminary objection aforesaid. The
learned trial judge, in determining the said preliminary
objection, instead of
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perusing only the 1st-38th respondents' amended
statement of claim to ascertain the latter's capacity, locus
standi, in his judgment at pages 2221-2223 of vol.5 of the
record of appeal, also placed reliance on paragraph 4(e) of
the counter affidavit and paragraphs 4 and 5 of the further
counter affidavit along with exhibits MAM1- MAM34
attached to the 1st -38th respondents' aforesaid further
affidavit against the preliminary objection. He then came to
the conclusion that the 1st -38th respondents had the
requisite legal capacity to have filed their action with
respect to the conduct of the primary elections for
aspirants for the Zamfara State Gubernatorial, National
and State House of Assembly, for members of the 39th
respondent, who was the 1st defendant at the Court below.
I have no difficulty in agreeing with the contention of the
appellants' learned senior counsel to the effect that the
learned trial judge was in error for placing reliance on the
counter affidavit and the further affidavit along with
exhibits MAM1-MAM34 to the aforesaid affidavits at the
instance of the 1st - 38th respondents in order to determine
whether or
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not the latter have locus standi to have filed their action at
the Court below. It is clear to me, that on the decided
authorities earlier referred to in this judgment, the only
processes that the learned trial judge ought to have
perused in order to determine that the 1st-38th
respondents had locus standi, were the amended statement
of claim read along with their Reply to the 4th-144th
defendants'/ appellants' statement of defense. However,
that faux pas by the learned trial judge notwithstanding, he
also referred to and placed reliance on "the reliefs claimed
in the amended statement of claim", and deduced that the
1st-38th respondents had locus standi to file their action
before him. I have myself perused paragraphs
1,5,6,7,8,9,10,11,12,13,14,15 and 16 of the amended
statement of claim read together with paragraphs
3,4,5,6,7,8 and 9 of the plaintiffs'/1st-38th respondents'
reply to the 4th -144th defendants'/appellants' statement of
defense. From the averments contained in the
aforementioned paragraphs of the amended statement of
claim and their reply to the appellants' statement of
defense, it is evident that the 1st -38th respondents, being
card carrying members of the 39th
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respondent, participated as aspirants in the primary
election, allegedly conducted by the 39th respondent on
3rd and 7th October, 2018, to pick its candidates for the
Zamfara State Gubernatorial, National and State House of
Assembly, to contest in the February and March, 2019
General Elections. Their grouse was that having
participated in the primary elections, the 39th respondent
had the plan to reverse the results from the aforesaid
primary elections and short change them, hence they had
to approach the Court below, in order to protect their
rights and interests. I am quite satisfied that the 1st-38th
respondents, by virtue of Section 156 of the Electoral Act,
2010, (as amended) by Electoral (Amendment) Act No.2
2011, which defines the word: ”aspirant“ as "a person who
aspires or seeks or strives to contest an election to a
political office"; are aspirants who participated in the
aforesaid primary election, allegedly conducted by the 39th
respondent on 3rd and 7th October, 2018 and ipso facto,
they each had locus standi when they filed their claim at
t h e C o u r t b e l o w . I s a h S h u a i b u L a u v .
Peoples Democratic Party & Ors (2017) LPELR-42800
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(SC) @ pp. 24-26; Ardo v. Nyako (2014) 10 NWLR
(pt.1416) 591.
I now turn my attention to the appellants' contention, to the
effect that by virtue of Section 251(1) (r) of the 1999
Constitution of the Federal Republic of Nigeria, as
amended, the Court below had no jurisdiction to have
entertained and determined the 1st-38th respondents'
action. In order to appreciate the import and dynamics of
this issue, the provisions of Section 251(1) (r) of the 1999
Constitution and Section 87(9) of the Electoral Act, 2010,
as amended, are each reproduced as follows, respectively:
"251(1) - Notwithstanding anything to the contrary
contained in this Constitution and in addition to such
other jurisdiction as may be conferred upon it by an
Act of the National Assembly, the Federal High Court
shall have and exercise exclusive jurisdiction to the
exclusion of any other Court in civil causes and
matters-
(r) any action or proceeding for a declaration or
injunction affecting the validity of any executive or
administrative action or decision by the Federal
Government or any of its agencies;
Section 87(9) of the Electoral Act ,2010 as amended, says:
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"87 (9) Notwithstanding the provisions of the Act or
rules of a political party, an aspirant who complains
that any of the provisions of this Act and the
guidelines of a political party has not been complied
within the selection or nomination of a candidate of a
political party for election, may apply to the Federal
High Court or the High of a State, or of the Federal
Capital Territory, for redress."
Indisputably, the law is no longer recondite, but very well
settled to the effect that it is only members of a political
party who had desired to contest elections into political
offices at the National, State and Local Government levels
in Nigeria and who consequently participated in the party
primaries conducted by their particular political party, but
have some grouse against the conduct and/or outcome of
primary elections, that can institute an action in Court and
ventilate their grievances by virtue of Section 87(9) of the
Electoral Act, 2010 as amended. The decided authorities of
the Supreme Court and this Court on this settled principle
of the law, are a basketful. So, just a few of them will
suffice: People's Democratic Party & Anor. v. Timipre
Sylva
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(2012) 13 NWLR (pt.1316) 85; (2012) All FWLR
(pt.637) 606; (2012) LPELR- 7814 (SC); Senator
Dahiru Gassol v. Alhaji Abubakar Tutare (2013) 14
NWLR (pt.1374) 221;(2013) LPELR-20232 (SC);
Terver Kakih v. People's Democratic Party & Ors
(2014) LPELR -23277 (SC) @ 69-70; Heineken
Lokpobiri v. Ogola & Ors (2016) 13 NWLR (pt.1499)
328 @ 389; Shinkafi & Anor v. Yari & Ors (2016) 7
NWLR (1511) 340 @ 370; Olugbemi v. Lawrence
(2017) LPELR - 42361 (SC); Lau v. People's
Democratic Party, supra. The vexed question of whether
or not it is the Federal High Court which has the exclusive
jurisdiction to hear and determine any suit bordering on
grievances complained of by aspirants who participated in
political party primaries was succinctly resolved by the
apex Court, in its aforementioned decisions, to the
conclusive effect that both the Federal High Court, State
High Court and the High Court of the Federal Capital
Territory, have concurrent jurisdiction to hear and
determine complaints by aspirants who had participated in
political parties' primary elections by virtue of Section
251(1) (r) of the 1999 Constitution, as amended and
Section 87(9)
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of the Electoral Act,2010, as amended. Instructively, in the
most recent decision of the apex Court, that is, Lau v. PDP
& Ors, (supra), on a similar matter that was filed, heard
and determined at the High Court of the Federal Capital
Territory, Abuja, with respect to a complaint that arose
from the conduct of the People's Democratic Party primary
election for the selection of its candidate, to contest in a
legislative office general election; it was reiterated
emphatically to the effect that the Federal High Court, the
State High Court and the High Court of the Federal Capital
Territory, possess concurrent jurisdiction to hear and
determine such matters. At pages 43-46 of the report,
Augie, JSC., succinctly stated that:
“The Current position of the law is that in exercising
jurisdiction under Section 87(9) of the Electoral Act,
the Federal High Court and the High Court of a State
or FCT have concurrent jurisdiction to hear and
determine disputes arising from conduct of a party’s
primaries - see Salim v. CPC (Supra), wherein Peter-
Odili, JSC, stated as follows “This Court would take
the stand it took in Ucha v. ONWE (2011) 1 SCNJ 232
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because of the brand new provision of Section 87(9)
of the Electoral Act. It is therefore, to be said in view
of this novel provision that the previous all-embracing
interpretation of Section 251 of the 1999 Constitution
is given once the Federal Government or its Agencies
are involved would have to be given a broad view in
the co-existing situation of the provisions of Section
87(9) of the Electoral Act and the sui generis nature
of the subject matter, the Court of Appeal was in
error in holding that the Federal High Court had the
exclusive jurisdiction to adjudicate on this pre-
election dispute to the exclusion of the State High
Court. This is because the jurisdiction is exercisable
by either the Federal High Court or State High Court
or High Court of the FCT. And Lokpobiri v. Ogola
(Supra). Wherein Muhammad, JSC said- Section 251
of the 1999 Constitution (as amended) creates
jurisdiction and make same exclusively exercisable by
the Federal High Court only in respect of the subject
matters the paragraphs under the section cover.
Election and election related matters, be it stressed,
have not been provided for by any of the paragraphs
under Section
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251 of the 1999 Constitution, the contrary
submissions of Counsel in this regard are certainly
misinformed and their reliance on our decision in
PDP V. Sylva (Supra) and Kakih v. PDP (supra) are
without basis.
Obviously the law is not static, particularly in election
matters, and what the law makers have done with the
enactment of Section 87(9) of the Electoral Act, is to
make more Courts available to aspirants, who
complain that provisions of the Electoral Act and
Guidelines of a political party, has not been complied
with in nominating candidates.
To insist on the narrow and limited jurisdiction
exclusive to the Federal High Court under Section
251 (1) (q) (r) and (s) of the 1999 Constitution when
it comes to election related matters, is to close the
doors that was opened to such dissatisfied aspirants
to seek redress in the other High Courts other than
Federal High Court. This I will not do; and this issue
is resolved in favour of the Appellant…”
My Lords, drawing inspiration, which we are bound to,
from the decisions of the Supreme Court, referred to above
and since it is glaring and clear as crystal, that relief 16 (e)
- (j)
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as endorsed in the amended statement of claim, at the
Court below, was targeted at the 3rd Defendant- the
Independent National Electoral Commission (the 41st
respondent herein), I have no doubt in my mind that the
Federal High Court does not possess an exclusive
jurisdiction in this matter. I am of the considered and firm
opinion that the Federal High Court, the State High Court,
as in the instant case, and the High Court of the Federal
Capital Territory, have concurrent jurisdiction to entertain
and determine disputes which arise from the conduct of
political parties' primary elections for candidates who seek
and desire to contest elections into Executive and
Legislative Offices. Therefore, I am in agreement with the
submissions by the learned Senior Counsel for the 1st -
38th and 39th - 40th respondents, respectively, to the
effect that the learned trial judge was on firma terra, in his
conclusion that he possessed the jurisdiction to entertain
and determine the 1st-38th respondents' action. And having
earlier in this judgment, held that the 1st -38th respondents
had the locus standi to file their action at the Court below;
Issues 1 and 2 are hereby resolved against the appellants.
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ISSUES THREE AND FOUR.
Issues three and four in this appeal are, Whether the
lower Court properly evaluated the evidence of all the
parties before arriving at the conclusion that the 1st
-38th Respondents proved their case to be entitled to
the reliefs they sought- (Distilled from ground No. 2).,
and Whether the Appellants right to fair hearing
guaranteed by Section 36(1) of the 1999 Constitution
of the Federal Republic of Nigeria (as amended), was
breached by the Court below- (distilled from ground
No. 1).
Appellant’s major grievance is that the lower Court failed to
properly evaluate the evidence generated at the trial, that
the lower Court did not support its conclusion with cogent
reasons, that the lower Court was casual and did not
attempt to advance good reasons based on the evidence
before it, before coming to the conclusion that the 1st to
38th Respondents established their claim, that the evidence
led by the parties at the trial featured prominently in the
proceedings, the arguments canvassed by the respective
Counsel for the parties, the issues sought to be determined
to reach a fair and just conclusion on the claim
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before the Court. Counsel for the Appellants said the Court
had the advantage of going through the materials before it
in order to arrive at a fair and just conclusion, rather than
focus on the materials and analyze them properly, the
lower Court just casually concluded that the plaintiffs
proved their case against the defendants without providing
basis for this decision.
On the part of the 1st to 40th Respondents, their argument
is that the lower Court properly and rightly evaluated the
evidence before it before coming to a conclusion that the
plaintiffs claim had merit. Again Counsel said the lower
Court properly reviewed, evaluated and appraised the
evidence led by the parties before coming to the conclusion
that the case of the Plaintiffs had merit and deserved to be
allowed.
Learned Counsel for the Appellants also referred to the
evidence of PW1, who testified for the 1st to 38th
Respondents to the effect that primary elections were
conducted by the 39th Respondent and produced
successful candidates for the election, that the primary
elections were supervised by the 3rd Defendant/41st
Respondent in this appeal. Learned Counsel insisted that
the
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purported primary elections were not made in compliance
with the provisions of Section 31(1) 87 (1) of the Electoral
Act 2010 (as amended).
The Respondents contended that there were primary
elections supervised by the 3rd Defendant. Insisting that
from the evidence of PW1, the Primary elections were
supervised by the Committee appointed by the National
Working Committee of the 39th Respondent.
Parties also addressed on exhibit 3 list of candidates and
exhibit 6 list of candidates and the provisions of the APC
constitution. Appellants relied on exhibit 4 document from
the 41st Respondent titled “Failure to conduct party
primaries in Zamfara State within the stipulated time
frame”, Appellants also relied on exhibits 7, 7A and 7B to
contend that party primaries were not conducted. The
Respondents on their part contented that the evidence of
DW1 punctured the said exhibits 4, 7, 7A and 7B.
Just to set the road map, the points to address in resolving
this issue relate to allegations of failure to properly
evaluate the evidence by the lower Court, whether primary
elections to select candidates for the 2019 elections in
Zamfara State
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actually took place, looking at the provisions of the law, the
evidence of PW1, DW1 and DW2, and the exhibits that
constitute an integral part of the controversy, exhibits 4, 7,
7A and 7B. The Appellants made allegations of denial of fair
hearing in passing, it appears issue of fair hearing is either
abandoned, or is collapsed and subsumed into the issue
central to the determination of this appeal, the Appellants
did not make any specific submissions on it as rightly
submitted by the learned Counsel for the 1st to 38th
Respondents.
Let me state that allegation of failure to evaluate evidence
by the lower Court in the instant appeal is in my view a
final point which I will come to deal with at the end of
resolving this issue. I will deal with the aspects relating to
the evidence before the Court before making a decision on
whether or not there was failure on the part of the lower
Court to properly evaluate the evidence before it. There is
nothing wrong in setting the stage by stating the settled
position of the law on evaluation of evidence, let me refer
to the decision of the Supreme Court of Nigeria in UMAR
V. BAYERO UNIVERSITY KANO (1988) 7 SC (Pt. II)
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1, where my law lord BELGORE JSC (Later CJN) said as
follows:
“It is the primary duty of the trial Court to evaluate
evidence before it and make definite findings on such
evidence. It has every advantage of doing this. The
witnesses are before it and it is well placed to judge
the demeanor of each witness. For examination-in-
chief, cross examination and re-examination, the trial
Court has an advantage over all appellate Courts of
deciding who to believe or disbelieve. The record of
proceeding, however detailed or comprehensive is not
cinematograph or even live voice accompanying
pictures but mere attempt to record what was said or
demonstrated and not the demonstration of the
evidence itself. It is for this reason that unless it is
expedient in exceptional circumstances, the appellate
Court should not disturb the findings of fact of trial
Court. You can believe that person you can see and
hear; similarly, the person you disbelieve. A Court of
Appeal merely sees the records and not the person
whose voice and demonstration are written down. The
exceptional circumstances could be incompetent
evidence, evidence legally inadmissible like hear-say
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and some secondary evidence. For trials are only
trials in law if based on lawful evidence; a judgment
based on inadmissible evidence is no judgment and
will be declared null and void”.
I also refer to the decision of this Court in AKINTOLA V.
ADEGBITE (2007) ALL FWLR (Pt. 372) 1891 at 1898,
delivered by my law Lord Augie JCA (as he then was) (Now
JSC) on what constitutes proper evaluation of evidence, my
Lord said as follows:
“Evaluation of evidence entails the assessment of
evidence so as to give value or quality to it; it involves
a reasoned belief of the evidence of one of the
contending parties and disbelief of the other or a
reasoned preference of one version to the other.
There must be on record how the Court arrived at its
conclusion of preferring one piece of evidence to the
other. In the instant case, the lower Court clearly
enumerated its reasons for preferring the evidence of
the respondent. See Oyekola v. Ajibade (2004) 17
NWLR (Pt. 902) 356; Idakwo v. Nigerian Army (2004)
2 NWLR (Pt. 857) 249; F.B.N. Plc v. Oniyangi (2000) 6
NWLR (Pt. 661) 497, Fasanya v. Adekoya (2000)15
NWLR (Pt. 689) 22, (2001) FWLR (Pt. 34) 516;
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Merchantile Bank of Nig. Plc. v. Nwobodo (2000) 3
NWLR (Pt. 648) 297".
The next point is the allegation by the Appellant that
primary elections did not hold in Zamfara State, the
Respondents said primary elections took place. Let me
examine the evidence of PW1, Alhaji Ibrahim Birnin Magaji
who was called to give evidence for the Plaintiffs at the
Court below now 1st to 38th Respondents in this appeal, in
his statement on oath at pages 30 to 36 of the additional
records of appeal particularly paragraphs 11 and 12
deposed as follows:
“11. That the 1st Defendant in an attempt to conduct
to a hitch free primary election constituted a 7-man
committee to supervise the conduct the primary
election in Zamfara State.
12. That the Plaintiffs aver that the Zamfara State
Governorship, National Assembly and State
Legislative Houses Primary Elections were duly
conducted and supervised by the 3rd Defendant on
the 3rd and 7th October, 2018.”
PW1 gave evidence and under cross examination by
Counsel for the 4th to 144th Defendants at the Court
below, specifically at page 2135 Vol 5 of the records of
appeal he said as follows:
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“…The members of the National Working Committee
sent to conduct election. 2 committees were sent to
conduct primary elections in Zamfara State. The 1st
Committee is 7, I only know the Chairman Engr.
Abubakar Fari. The 2nd Committee was headed by
Major General Mustapha Gana retired and it consists
7 members. I don’t know the names of the other
members. By the time table the primary is supposed
to be conducted in Zamfara State on 7/10/2018. The
two Committees were to conduct Gubernatorial,
Senate, House of Reps and House of Assembly
primaries. To the best of my knowledge the
Committees conducted the primaries. I don’t know
how many times primaries are to be conducted in
Zamfara State. I don’t know why two Committees
conducted primaries in Zamfara State. The 1st
Committee conducted its primaries in 3/10/18. The
2nd Committee Conducted its primaries in 7/10/2018
in Zamfara State, for the same purpose. I don’t know
whether the 1st and 2nd Committees issued a report.
The INEC officials were in attendance at both
primaries. I don’t know who represented INEC. I don’t
have the gift of seeing things that are not common
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to normal human beings. I agreed that if INEC
officials were there they will observe the proceedings
and issue a report. I am a faithful person. I have
resigned my position as Commissioner for
information on 12/8/2018. I served as Commissioner
for information between 2011 and 2018. The
deposition in paragraph 13 of my statement on oath is
correct I never saw the CTC of the report from the 3rd
defendant. I didn’t tell the Court lies it is in the
exhibit 3.
Exhibit 3 is a list and not a report. Exhibit 3 is my
report. I know Lawal M. Liman. He is the Zamfara
State Chairman of APC. He is not a member of the
National Working Committee. He is also not a
member of any of the 2 Committees appointed by
NWC to conduct primaries in Zamfara State. Lawal M
Liman is also not the Chairman or secretary of APC. I
am not aware that he is to serve as returning officer,
in exhibit 6 the person submitting the report is Lawal
M. Liman. He signed exhibit 6, Exhibit 6 contains my
name...”
What can be deduced from the evidence is that, the State
Executive of the party under the leadership of Lawal Liman
conducted primary elections and sent exhibit 6, list of
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candidates to the Zamfara State Resident Electoral
Commissioner. It is important to examine exhibit 6, it is
found at page 2344 Vol 5 of the records of appeal the letter
dated 7th October 2018 reads as follows:
“The Resident Electoral Commissioner,
Independent National Electoral Commission (INEC)
Gusau, Zamfara State.
SUBMISSION OF SUCCESSFUL CANDIDATES
Following the conduct of direct primary elections of
Governorship, Senate, House of Representatives and
State Assembly in Zamfara Sate, I am pleased to
forward herewith the list of successful candidates for
various positions as follows:
i. 1 Governorship Candidate
ii. 3 Senate
iii. 7 House of Representatives
iv. 24 State House of Assembly Members
2. The direct primary elections were officially
monitored and observed by the Independent National
Electoral Commission (INEC) and Security Agencies.
The list of the candidates is attached.
3. Submitted for your necessary action please.
Hon. Lawal, M. Liman
State Chairman APC”
It is beyond any doubt that the State Chairman of APC
Lawal M. Liman conducted the primary elections and
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submitted list of successful candidates to the Resident
Electoral Commissioner, it is necessary for me to mention
that the State Chairman who conducted the primary
elections is the State Chairman of the party and a
successful candidate for the 2019 general elections, he is
also Respondent number 26 in this appeal before us.
The All Progressives Congress, guidelines for the
nomination of candidates for the 2019 general elections -
Direct primaries. Paragraph 14 of the guidelines provides
as follows:
“14 ELECTORAL PROCESS
a. There shall be a 7-member Election Committee for
each state, who must be persons of proven integrity.
b. The members of the Committee are to be recruited
from outside the State of their assignment,
comprising of a chairman, secretary and 5 other
members.
c. The Committee shall be responsible for the overall
conduct of the exercise in the State.
d. The Committee shall supervise the local
Government and ward Election Committees.
e. The Committee shall collate results from all the
Local Governments.
f. The final result of the elections shall be collated on
the state Declaration of Election Results Form.
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Paragraph 14 clearly provides that members shall be
recruited from outside the State of their assignment. Again
paragraph 20 (b) (c) and (d) of the same guidelines
provides as follows:
B. There shall be a 7-member Governorship Election
Committee in each State of the Federation who must
be persons of proven integrity. They will be recruited
from outside the State of their assignment
comprising of a Chairman, Secretary and 5 other
Members. They shall be responsible for the overall
conduct of the exercise in the State.
C. There shall be a 7- member legislative Election
Committee (State House of Assembly, House of
Representatives and Senate) of each State of the
Federation and FCT. They will be recruited from
outside of their State for their assignment, and shall
comprise of a Chairman, Secretary and 5 other
Members. They shall be responsible for the overall
conduct of the exercise in the State and FCT.
D. The membership of the various Electoral
Committees shall be as constituted by the National
Working Committee (acting on behalf of NEC).
Duties of the Committee shall include
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• Verification. Accreditation of delegates
• Organizing and conducting Elections and all duties
related thereto. The Electoral Committee shall serve
as Electoral Officers/Returning Officers from each
election. They shall supervise the conduct of party’s
primaries in the State, compile results and submit
same to the National Secretariat. They shall have
powers to announce the outcome of all elections
conducted.
The Electoral Committee shall appoint Returning
officers from amongst themselves and shall have the
power to appoint a Returning officer to supervise
areas where they cannot cover, and such Returning
Officer shall not be from that Constituency/
Senatorial Zone/ State.
From the provisions of paragraphs 14 and 20 of the
guidelines, there is very clear emphasis on the person to be
recruited for the purpose of conducting primary elections,
both paragraphs placed emphasis on recruiting persons
from outside the area where elections are to be conducted,
the power to appoint the 7 man Committee is vested in the
National Working Committee. PW1 stated in his evidence
that Lawal M. Liman is the Chairman of the party in
Zamfara
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State, he is not a member of the National Working
Committee, he was not appointed by the National Working
Committee to conduct primaries, in the face of all these
hard facts, he crafted exhibit 6 signed and sent list of
allegedly successful candidates to the Resident Electoral
Commissioner Zamfara State, forwarding list of successful
candidates, and the list included his name as a successful
candidate, he is also one of the Respondents in this appeal.
I must say it loud and clear, that Lawal M. Liman the
Chairman APC Zamfara State had no slightest power to
conduct primaries and forward list of successful candidates
to INEC. He acted illegally against his party’s Constitution
and guidelines with respect to conduct of primaries. He had
no authority or slightest business conducting primary
elections and forwarding list of allegedly successful
candidates including his name to INEC. His action is
incongruous, patently bizarre and detrimental to healthy
competition in politics. It is also strange that PW1 insisted
that Primary elections were conducted, his stance was
either founded on ignorance or a calculated design to stick
to falsehood and hoodwink the lower Court. I must also
add,
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that PW1 is not a reliable witness because he has a mission
and a purpose to serve. He is a candidate and a product of
the purported party primaries; hence he has a stake in the
purported primary election, which he tried to defend by all
means, all be it very unfairly.
Section 31 (1) of the Electoral Act 2010 (as amended)
provides that:
Every political party shall not later than 60 days
before the date appointed for a general election
under the provisions of this Act, submit to the
Commission in the prescribed forms the list of the
candidates the party proposes to sponsor at the
elections.
The above provision of the law, takes me to Section 87 (1)
of the same Electoral Act the section also dealing with
primary elections provides as follows:
87(1). A political party seeking to nominate
candidates for elections under this Act shall hold
primaries for aspirants to all elective positions.
Having found that the 39th Respondent failed to conduct
primary elections in line with the provisions of the law,
particularly Sections 31 and 87 of the Electoral Act 2010
(as amended), the 41st Respondent in this appeal, the
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Independent National Electoral Commission on the 9th day
of October 2018 wrote a letter titled “Failure to Conduct
Party primaries in Zamfara State within the Stipulated
time”, exhibit 4. I consider it necessary to reproduce the
letter in this judgment, it reads as follows:
“The Chairman
All Progressives Congress (APC)
Plot 40 Blantyre Street
Wuse 2
Abuja.
FAILURE TO CONDUCT PARTY PRIMARIES IN
ZAMFARA STATE WITHIN THE STIPULATED
TIMEFRAME.
Please refer to the Time Table and schedule of
Activities for the 2019 General Elections released by
the Commission on 9th January 2018. You would note
from the Timetable that the conduct of party
Primaries is scheduled to take place between 18th
August and 7th October 2018.
2 . K indly a lso re fer to the las t schedule
communicated by your party to the Commission on
the dates of party primaries nationwide, including
Z a m f a r a v i d e y o u r l e t t e r R e f :
APC/NHDQ/INEC/19/18/51 dated 3rd October 2018.
However, report received from our office in Zamfara
State shows that no primaries were conducted by your
party in the State notwithstanding that our officials
were fully mobilized and deployed.
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3. Consequently based on the provisions of Section 87
and 31 of the Electoral Act 2010 (as amended), the
Commission does not expect that your party will
submit names of any candidates from Zamfara State.
For clarity, our position therefore is that the All
Progressives Congress (APC) will not be fielding
candidates for the Governorship, National Assembly
and State Assembly elections in Zamfara State for the
2019 General Elections.
4. Please accept the assurances of the Commissions
highest regards.
Okechukwu Ndeche
Ag. Secretary to the Commission.”
From the contents of exhibit 4, it is clear that the
Independent National Electoral Commission took a decision
that the 39th Respondent in this appeal had no candidates
for the 2019 general Elections. This letter apparently
prompted reactions and seemingly steered the hornet’s
nest, the letter from INEC opened flood-gate of reactions.
Exhibits 7 and 7A.
Exhibit 7 is a letter addressed to the Chairman INEC titled
“Report on the All Progressives Congress Primaries” dated
9th October 2018 signed by Dr. Asma’u Sani Maikudi
Resident Electoral Commissioner Zamfara State. The letter
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conveyed report and part of the report reads as follows:
“…On 3rd October 2018, the 1st Committee headed by
Engr. Abubakar Fari attempted to conduct the
Election which was agreed by the aspirants.
The shortage of election materials especially ballot
papers which were grossly inadequate led to the
change of the mode of election to option A4, which
was also agreed upon by the aspirants.
At that stage, the Commission’s staff were directed to
monitor the primaries at various wards of the local
Governments in the State. The process continued
successfully in some areas but later halted and
suspended by the Committee due to escalation of
violence and protests in some LGAs such as Anka,
B/Magaji, Gusau, K/Namoda, Bungudu etc.
The second Committee headed by Major General
Abubakar Mustapha Gana (Rtd) was sent by their
National Headquarters to replace the previous
Committee to conduct the primaries.
The second Committee Could not hold primaries as a
result of the following reasons:
VOTERS REGISTER
STAFFING
SCREENING
The process could not hold due to the tension, and
the
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time frame could not allow the election to hold. In
effect the Committee suspended the election.
On the other hand, considering the deadline for the
primaries as issued by INEC, the State Government
directed the State Party Executives to conduct the
primaries at all levels before 12.00 midnight of 7th
October 2018.
The list of those elected were later submitted to
INEC.
INSTANCES OF VIOLENCE
1. In Gusau LGA at Kanwuri (Madawaki RA) on 3rd
October 2018, members of Nigeria Civil Defense Corp
shot a young man whose group came armed with
offensive weapons attacking people.
2. At Birnin Ruwa Primary (Mayana RA) of Gusau LGA
the members of CTU (Police team) shot another
person to death.
3. A policeman was stabbed to death at Kongo Area of
Tudun Wada RA in Gusau LGA on 6/10/18.
4. In Bungudu LGA violence erupted in front of the
police station, the DPO called for backup re-
enforcement from Gusau Headquarters (CTU) in the
process two lives were lost.
5. At Nasarawa Godel West RA, in B/Magaji LGA one
person lost his life as a result of violence.
6. In B/Magaji LGA three (3) children were suffocated
to death as a result of overcrowding...”
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From exhibit 7 too, it is very clear to me that primary
elections were not conducted by the 39th Respondent in
this appeal. The said exhibit also disclosed that the State
Government appointed a Committee to conduct primaries,
this is clearly wrong, improper and outside the powers of
the State.
Exhibit 7A is A letter from Comrade Adams Aliyu Oshiomole
National Chairman of the 39th Respondent to the Chairman
INEC, expressing shock that the party was not allowed to
submit its list of candidates, that in the spirit of due
compliance, the party would present its list of candidates
before the 18th of October 2018, no such list was sent. I am
in agreement with the submissions of learned Counsel for
the Appellants that exhibit 7A letter form the Chairman of
APC, 39th Respondent to INEC 41st Respondent
constitutes an admission that primary elections were not
conducted by the 39th Respondent. The law is well settled
that where there are admissions against interest such
admissions will be admissible against a person, such
evidence shall be viewed in relation to the entire evidence
before the Court, see: KAMALU & ORS V. DANIEL
N W A K U D U U K A U M U N N A & O R S ( 1 9 9 7 )
LPELR-1657 (SC).
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DW1 Salman Uwaisu testified that the 39th Respondent
made two unsuccessful attempts to conduct primaries even
though under cross examination he said the Committees
conducted primaries. It needs to be stated that oral
evidence cannot vary or contradict the contents of a
document. Documentary evidence being permanent in form
is more reliable than oral evidence and is used as a hanger
to test the credibility of oral evidence. In the instant appeal,
there are several documents admitted as exhibits 4, 6, 7,
7A and 7B for the lower Court to rely on in order to
determine whether the 39th Respondent actually
conducted primary elections or not.
It is apparent from the decision of the lower Court, that
attention was not accorded to the materials before it, the
lower Court failed to properly evaluate the evidence and
come to a conclusion, this is certainly a case of the lower
Court shutting its eyes to the obvious, and remained
persistently on the path of error thereby giving a decision
that is perverse, a decision that is different from what is
reasonable or required, a decision that is against the
weight of evidence. The law is settled that where the
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trial Court fails to properly evaluate the evidence placed
before it, the Appellate Court is in as good position as the
trial Court to re-evaluate the evidence placed before it, to
ensure that justice is done to the parties, this is in accord
with the provisions of Section 15 of the Court of Appeal Act
2004. Having painstakingly perused the evidence before
trial Court, I agree with the learned Counsel for the
Appellants that the lower Court failed to properly evaluate
the evidence before it. In ATOLAGBE V. SHORUN SC.
14/1984 on the meaning of what constitutes a perverse
decision, OPUTA (JSC) (of blessed memory) said as
follows:“Perverse simply means persistent error,
different from what is reasonable or required, against
the weight of evidence. A decision may be perverse
where the trial Judge took into account matters not to
be taken into account or where the judge shuts his
eyes to the obvious.”
The Provisions of Sections 31(1) and 87(1) of the Electoral
Act, 2010 (as amended), and The All Progressives
Congress, guidelines for the nomination of candidates for
the 2019 general elections - Direct primaries, prescribe
the
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mode of producing candidates for the 2019 elections, the
procedure must be followed, whenever there is a specific
provision regulating the procedure for doing a particular
act, that procedure must be followed, it is also trite that
when a statute dictates a certain mode of doing something,
then that method and no other must be employed in the
performance of the Act, see: BERNARD AMASIKE
V. REGISTRAR GENERAL, CORPORATE AFFAIRS
COMMISSION (2010) LPELR-456 (SC).
I am convinced that the lower Court failed in its duty to
properly evaluate the evidence placed before it by the
Appellants in this appeal, let me refer the decision in
OVUNWO & Ors V. WOKO & Ors (2011) LPELR-2841
(SC), where my Lord CHUKWUMA ENEH JSC (of blessed
memory) said: ”I must however , respectfully observe at
this stage vis a vis the lower Court's manner of
couching its judgment in this appeal that every Judge
reserves the right as to his own style of writing
judgments whether sitting at the trial or appellate
level of the Courts. All the same, what must be
recognized as settled law is the duty to pronounce
judgment on all issues placed before the judge for
resolution. Without
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over simplifying this duty every judgment has to state
the facts of the case, state the points at issue
requiring the Court to pronounce upon them, then
the Courts decision with the reasons for same”.
Having said this much, I am of the view that Appellants
issues three and four must be and are hereby resolved in
favour of the Appellants against the Respondents.
Let me end with these words of admonition proffered by his
Lordship AUGIE JSC in LAU V. PDP (Supra) at pages
66-67 thereof, thus
“This is a hard and very bitter lesson for political
parties to learn, they may have chosen candidates or
eminent personalities they want to present as
candidates to INEC, but they have to play by the rules,
the chosen candidates must comply with the
requirements of the law; they must abide by the
provisions of the Electoral Act, which creates a level
playing field for all aspirants, who seek to contest
elections. So, the political parties and their
candidates must obey the Rules”.
I think with that, I am done. I only need to add that those
who have ears to hear should hear and do what the Courts
have been saying.
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Having resolved issues three and four in favour of the
Appellants it follows that Appellants appeal has merit and
therefore deserves to be and is hereby allowed by me. In
consequence of allowing this appeal, the Judgment of the
lower Court delivered on the 25th day of January 2019 by
SHINKAFI, J., in suit No. ZMS/GS/52/2018 is hereby set
aside.
Parties in this appeal shall bear their respective costs.
TIJJANI ABUBAKAR, J.C.A.: This is another instance of
brazen impunity and flagrant disregard to the provisions of
the Electoral Act and Political party guidelines in the
selection of candidates for the 2019 general Elections. It is
no longer possible for politicians to throw caution to the
wind in the selection process of candidates and get away
with it, right from the decision of the Supreme Court of
Nigeria in LAU V. PEOPLES DEMOCRATIC PARTY
(PDP) (2017) LPELR-42800 (SC), the Supreme Court of
Nigeria sent out signal to politicians that developing and
improving internal democracy in managing domestic affairs
of political parties lies at their door step, if it is not done
right, the law has given room for judicial intervention. The
judgment
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just rendered in this appeal is one of such instances.
My Lord KEKERE-EKUN JSC, in his elaborate contribution
to the decision in LAU V. PDP (Supra), said as follows:
“I do not have much to add save to observe that once
again we are faced with a situation where a political
party in selecting its candidates for an election has
completely thrown caution to the wind and acted in
flagrant disregard of the provisions of the Electoral
Act and its own guidelines.
There is a settled line of authorities to the effect that
domestic or internal affairs of a political party are not
justiciable, that the Courts will not dabble into
membership of a party or who it chooses to sponsor
for an election. See. Onuoha vs Sylva (2012) 13 NWLR
(pt. 1316) 85; APGA Vs Anyanwu (2014) 1-2 SC (pt.
1); Emenike vs PDP (2011) LPELR-19752 CA).
However, in making its choice, a political party must
act within the law and must comply with its own
constitution and guidelines. Prior to 2006, political
parties acted with impunity in the selection,
sponsorship and substitution of candidates for
election. The absolute powers of parties in this
respect were curtailed to an extent
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by the introduction of Sections 32 and 34 (now
Section 33 of the Electoral Act 2010 (as amended)
made specific provisions for the manner and time
within which the substitution of a candidate could be
made while Section 32(4) (now Section 35(4) of the
Act, permitted the particulars submitted to INEC by a
candidate to be challenged in Court. A further
amendment of the Electoral Act in 2010 vide Section
87(9) thereof provided that an aspirant who is
dissatisfied with the conduct of his party primary
election or who alleges non-compliance with the
Electoral Act or the party’s constitution and/or
guidelines in the selection or nomination of a
candidate of a political party for election may seek
redress at the Federal High Court, or the High Court
of a State or Federal Capital Territory. The reason is
not far-fetched. While the actual choice of a
candidate is within the domestic affairs of the party,
which is not justiciable, the party must adhere strictly
to the provisions of the Electoral Act and its own
Constitution and guidelines in carrying out the
exercise. Section 87(9) empowers the Court to
intervene where a party
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(as in this case) has acted arbitrarily and with
impunity. See; Emenike v. PDP (2012) 12 NWLR (pt.
1315) 556 @ 603, E-G; Uzodinma v. Izunaso (2011) 18
NWLR (Pt. 1279) 689 @ 717-719 G-B”.
Whenever a procedure for doing a particular process is set
down by law, that and no other procedure must be
followed.
I read exhibit 4 letter from INEC, the 41st Respondent in
this appeal, wherein the Commission sounded tough and
business like, when it said its doors were shut against the
39th Respondent, from presenting candidates for the 2019
Elections in Zamfara State. At the Court below, INEC
featured prominently, the Commission appeared proactive
and energetic at the trial. When the matter eventually came
before us on appeal, the Commission failed to appear in
Court, and failed to file any process, it is their right to do so
as Respondents but, I am compelled to express shock at the
sudden change, the Commission fizzled out and retired into
inexplicable silence and helplessness as if it was struck by
visitation of God to steer clear of the scene, is it for fear of
being accused of partisanship? Whatever is thier reason for
so doing they have not helped the system, they must do
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better. The Independent National Electoral Commission has
responsibility to enforce discipline and inject sanity, the
Political parties must be taught the benefits of voluntary
compliance, exhibit 4 was a good starting point. INEC has a
duty to discharge its obligations under the law without let
or hindrance, its attempted boldness in Zamfara State must
continue, the political parties need such positive even
though attempted step taken by INEC. It must continue.
My learned brother, Tom Shaibu Yakubu JCA granted me a
preview of the lucid judgment just rendered in this appeal,
he fully covered the field, and left no space for further
comments, I endorse the entire reasoning and conclusion
and adopt the judgment as my own, I also abide by all
consequential orders including the order on costs.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother
Tom Shaibu Yakubu JCA afforded me the opportunity of
reading before today the lead judgment just delivered and I
agree with the reasoning and conclusion therein that the
appeal is meritorious and should be allowed.
By way of emphasis, I wish to comment briefly on the
Appellants issue three.
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Issue three is stated to be derived from ground two of the
Notice of appeal and it reads "Whether the Court below did
discharge the duty incumbent upon it to evaluate or
properly evaluate and ascribed weight to the evidence led
by the parties before it before coming to the conclusion
that the 1st-38th Respondent’s claim was proved and
granting the reliefs sought by them." Based on the facts
pleaded by the parties and the evidence led by the parties
in proof of same the learned trial judge in his judgment at
pages 2253-2254 of the record found and concluded thus;
“Now on the strength of the evidence adduced by the
plaintiff the evidence elicited from both DWS 1 and 2
during cross examination as well as the documentary
evidence tendered and admitted in evidence I am
satisfied that the plaintiffs have proved their case
against the defendants. Consequently, therefore the
issue for determination formulated is hereby
answered in the affirmative and all the reliefs claimed
by the plaintiffs are hereby granted.”
Now the case of the Appellants is that the lower Court
failed to evaluate the evidence before it before arriving at
its
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conclusion. I have gone through the entire judgment of the
lower Court more particularly from pages 2234-2253 of the
printed record and what I find therein are the summary of
the evidence led by all the parties the arguments of
counsels and the issue distilled for determination by the
lower Court. As far back as 1978 the Supreme Court in the
case of Odofin & Ors v Mogaji & Ors (1978) NSCC 275
at 277 stated the procedure to be followed in the
evaluation of evidence in the following terms;
“In other words, the totality of the evidence should be
considered in order to determine which has weight
and which has no weight at all. Therefore in deciding
whether a certain set of facts was given in evidence by
one party in a civil case before a Court in which both
parties appear is preferable to another set of facts
given in evidence by the other party, the trial judge,
after summary of all the facts, must put the two sets
of facts on an imaginary scale, weigh one against the
other then decide upon the preponderance of credible
evidence which weighs more, accept it in preference
to the other, and then apply the appropriate law to
it.”
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See UKAEGBU & ORS V NWOLOLO (2009) LPELR
3337 (SC) ; EYIBOH V ABIA & ORS (2012)
LPELR-20607 (SC); STALLION SEA FOODS LTD
WARRINGTON V NOGUMWEGIE (2013) LPELR-20313
(CA); ANOSIKE VS DINYO (2016) LPELR-41397 (CA)
The law is settled that in civil matters such as in the instant
case the Court decides the case on the balance of
probability or preponderance of evidence and this the
Court does by putting the admissible evidence adduced by
the parties on the imaginary scale weigh them and decides
which is heavier not by the number of witnesses called or
documentary evidence placed but by the quality or
probative value of the evidence be it oral or documentary.
In determining which is heavier, the judge will necessarily
have regard to the following;- (a) Whether the evidence is
admissible;(b) Whether it is relevant;(c) Whether it is
credible;(d) Whether it is conclusive and (e) Whether it is
more probable than that given by the other party. Finally,
after invoking the law that is applicable to the case the trial
judge will then arrive at his final conclusion based on the
evidence which he accepted. Evaluation of evidence is
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therefore the assessment of all the facts presented by the
parties and the ascription of probative value to them. That
duty remains foisted on the trial judge. See Baba v
Nigerian Civil Aviation & Anor (1991) LPELR-692
( S C ) ; E Z E M B A V I B E N E M E & A N O R
(2004)LPELR-1205 (SC).
In my view the evaluation procedure adopted by the trial
Court was not in consonance with the above principles on
evaluation of evidence. There is nothing in the judgment to
show any attempt on the part of the lower Court to put the
evidence adduced by the parties on the imaginary scale,
scrutinize same to know which has probative value over the
other before arriving at its conclusion granting all the
reliefs of the plaintiffs.
For this and the more robust reasoning in the lead
judgment, I too allow the appeal. I abide by the
consequential orders contained in the lead judgment.
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Appearances:
Chief Mike Ozekhome, SAN with him,ChiefFerdmanda Orbih, SAN ,J. C. Shaka, Esq.,NuhuMuhammed, Esq.,M. Salahuddeen, Esq.,AmirSaned, Esq. and Safiah Suleiman, Esq ForAppellant(s)
Mahmud A. Magaji, SAN with him,Chris KelechiUdeoyibo, Esq., Ifeoma Johnson, Esq., IssaAbubakar, Esq., Junaidu Abubakar, Esq., IbrahimAli, Esq., Surajo Garba, Esq.,Sani Tahir, Esq. andJamilu Shafa, Esq.-for 1st to 38th Respondents
Abdullahi Aliyu, SAN with jim,Affis Matanmi,Esq., H. O. Umar, Esq., and Sandra Ozoemena,Esq.-for 39th to 40th Respondents.
Chief J. E. Ochidi, Esq. with him,A. A. Jibrin, Esq.and Umar Dahiru, Esq. - for 42nd RespondentsFor Respondent(s)
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