ALIYU v. NAMADI & ORS (2022)

ALIYU v. NAMADI & ORS

(2022)LCN/16192(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, November 04, 2022

CA/KN/250/2022

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

HON. FAROUK ADAMU ALIYU APPELANT(S)

And

1. UMAR A. NAMADI 2. ALL PROGRESSIVES CONGRESS (A.P.C.) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)

RATIO

THE PROVISION OF LAW CONFERRING SPECIAL RIGHTS ON ASPIRANTS OF POLITICAL PARTY PRIMARY

This provision conferring special locus standi on aspirants of political party primary must be given its full effect by the Court once its requirements are met by the plaintiff. By this provision the special right/locus conferred on an ‘aspirant’ which term, it is now judicially settled, refers to only persons who actually contested the political party primary election in issue (See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85; Eze v. PDP (2019) 1 NWLR (PT 1652) 23, Etim v. Akpan & Ors (2018) LPELR-44904 S.C.), is limited to complaints of non-compliance by the political party concerned with:
(1) any of the provisions of the Electoral Act 2022 and
(2) its own guidelines
in the selection or nomination of a candidate of a political party for election. PER UGO, J.C.A.

THE PROCEDURE TO BE FOLLOWED WHERE A POLITICAL PARTY SETTLES FOR INDIRECT PRIMARIES FOR NOMINATION OF ITS GOVERORSHIP CANDIDATE

THE POSITION OF LAW ON CAUSE OF ACTION

Cause of action consists of the bundle or aggregate of facts in the relationship between the parties which the law will recognize as enabling the plaintiff to enforce the claim against the Defendant: see Ibrahim v. Osim (1988) NSCC 1184 at 1198(Karibi-Whyte, J.S.C.). PER UGO, J.C.A.

THE POSITION OF LAW ON LIMITATION LAW

It is also settled law that time begins to run for purposes of limitation law when there is in existence a person who can sue (in this case appellant, upon his contesting the primary election in issue) and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed: see Ofili v. C.S.C. (2007) 42 W.R.N. 52; Adekoya v. F.H.A. (2008) 6 MJSC 66 at 79; Lasisi Fadare v. Attorney General of Oyo State (1982) LPELR-1222 (SC) P.17; Eyo-Ita Uso v. Ibok E. Eyo-Ita & Anor (2016) LPELR-41197 (CA) p.21-22. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court (trial Court), Dutse Judicial Division, delivered on the 18th September 2022 by Hassan Dikko, J, in which that Court first struck out the originating summons of appellant on grounds of lack of locus standi in appellant and consequential lack of jurisdiction in it to entertain it and then later dismissed it on the merits on appellant’s purported failure to prove his allegations/case as contained in the summons.

Appellant in his said Originating Summons sought determination of the following questions:
1. Having regards to the flagrant breach of the provisions of Section 84 (5) (b)(i) and (ii) of the Electoral Act 2022, INEC’s Regulations and Guidelines for the Conduct of Political Party Primaries, Articles 20.4(ii)(b) of the Constitution of the All Progressives Congress, Articles 22(ii), 25 and 26 of the All Progressives Congress’ Guidelines for the Nomination of Candidates for the 2023 General Elections read together with All Progressives Congress Notice of Conduct of Special Congress issued by the All Progressives Congress National Organizing Secretary, whether the 1st Defendant was validly nominated on the 27th May, 2022 as the candidate of the 2nd Defendant in the forthcoming 2023 Gubernatorial Election in Jigawa State.
2. Whether the purported nomination of the 1st Defendant on the 27th May 2022 as the candidate of the 2nd Dependant for the forthcoming 2023 Gubernatorial Election in Jigawa State is not invalid, wrongful, illegal and unconstitutional, same having being in total disregard of the provisions of Section 84(5)(b)(i) and (ii) of the Electoral Act 2022, INEC’s Regulations and Guidelines for the Conduct of Political Party Primaries, Article 20.4(ii)(b) of the Constitution of the All Progressives Congress, Articles 22(iii), 25 and 26 of the All Progressives Congress Guidelines for the Nomination of Candidates for the 2023 General Elections read together with All Progressives Congress Notice of Conduct of Special Congress issued by the All Progressives Congress National Organizing Secretary.
3. Having regards to the provisions of Section 84(13) of the Electoral Act 2022, Whether the 3rd Defendant is not obligated to refuse to accept the purported nomination of the 1st Defendant as the candidate of the 2nd Defendant for the forthcoming Gubernatorial 2023 election in Jigawa State, the 1st Defendant’s purported nomination on the 27th May 2022 having been in flagrant violation and in contravention of the provisions of Section 84 (5)(b) (i) and (ii) of the Electoral Act 2022, INEC’s Regulations and Guidelines for the Conduct of Political Party Primaries, Article 20.4(ii)(b) of the Constitution of the All Progressives Congress, Articles 22(iii), 25 and 26 of the All Progressive Congress, Guidelines for the Nomination of Candidates for the 2023 General Elections, read together with the All Progressives Congress Notice of Conduct of Special Congress issued by the All Progressives Congress National Organizing Secretary regulating the nomination of the Jigawa State Gubernatorial Candidate of the 2nd Defendant which was purportedly held on the 27th May 2022 at Aminu Kano Triangle, Dutse, Jigawa State.

In anticipation of a favourable determination of the said questions above, he sought the following Relief from the Court:
1. A declaration that by virtue of the provisions of Section 84(5)(b)(i) and (ii) of the Electoral Act 2022, INEC’s “Regulations and Guidelines for the Conduct of Political Party Primaries”, Article 20.4(ii) (b) of the Constitution of the All Progressives Congress, Articles 22(iii), 25 and 26 of the All Progressives Congress’ Guidelines for the Nomination of Candidates for the 2023 General Elections, read together with All Progressives Congress’ Notice of Conduct of Special Congress issued by the All Progressives Congress National Organizing Secretary for the purpose of regulating the Gubernatorial Primary Election which was held on 27th May, 2022 at Aminu Kano Trangle, Dutse, Jigawa State, the 1st Defendant is not validly nominated candidate of the 2nd Defendant in the forthcoming 2023 Gubernatorial Election in Jigawa State.
2. A declaration that by virtue of Section 84(13) of the Electoral Act 2022, the 3rd Defendant is obligated to reject the nomination of 1st Defendant as candidate of 2nd Defendant in the 2023 Gubernatorial Election because the purported nomination of the 1st Defendant was done in flagrant breach of the provisions of Section 84 (5)(b)(i)and(ii) of the Electoral Act 2022, INEC’S Regulations and Guidelines for the Conduct of Political Party Primaries, Article 20.4(ii)(b) of the Constitution of the All Progressives Articles 22(iii), 25 and 26 of the All Progressives Congress’ Guidelines for the Nomination of Candidates for the 2023 General Election read together with All Progressives Congress Notice of Conduct of special Congress issued by the All Progressives Congress National organizing Secretary for the purpose of regulating the Jigawa State Gubernatorial Primary Election, which was held on 27th May, 2022 at Aminu Kano Triangle, Dutse, Jigawa State.
CONSEQUENT UPON ANY OF THE ABOVE:
3. An Order of this Honourable Court setting aside the declaration of the Defendant as the winner of the Gubernatorial Primaries of the APC which was held on 27th May, 2022 at Aminu Kano Triangle, Dutse, Jigawa State.
4. An Order of perpetual injunction of this Honourable Court restraining the 1st Defendant from parading himself as the winner or the 2nd Defendant’s Gubernatorial Primary Election purportedly held on the 27th day of May, 2022, at Aminu Kano Triangle, Dutse Jigawa State for the 2023 General Election in Jigawa State for the forthcoming 2023 General Election Jigawa State.
5. An Order of perpetual injunction of this Honourable Court restraining the 2nd and 3rd Defendants from recognizing and holding out the 1st Defendant as the 2nd Defendant’s flag bearer and Gubernatorial candidate for the forthcoming 2023 General Election in Jigawa State.
6. An Order of mandatory injunction compelling the 3rd Defendant to delist the name of the 1st and 2nd Defendants from amongst the list of Political parties and Gubernatorial candidates for the forthcoming 2023 Gubernatorial Election in Jigawa State or at any subsequent postponement or de-recognize the 1st and 2nd defendants as political party and candidate respectively and deny them all rights and privileges due to political parties fielding candidates at the said 2023 Jigawa State Gubernatorial election.
7. A Declaration that the Plaintiff is entitled to the refund of the sum of Fifty Million Naira (N50,00,000) only being the cost of the Expression of Interest Form and Nomination Form he purchased from the 2nd Defendant owing to the belief that the 2nd Defendant Will comply with the provisions of Article 20.4(i) (b) of the Constitution of the All Progressives Congress, Articles 22(ii), 25 and 26 of the All Progressives Congress Guidelines for the Nomination of Candidates for the 2023 General Elections read together with the All Progressives Congress Notice of Conduct of Special Congress issued by the All Progressives Congress National Organizing Secretary for the purpose of regulating the APC Gubernatorial Primary Election in Jigawa State.
8. An Order of the Court directing the 2nd Defendant to pay the Plaintiff the sum of Fifty Million Naira (N50,000,000) as exemplary damages for causing the Plaintiff unnecessary hardship, waste of time and resources in preparing to participate at the Gubernatorial primary election of the 2nd Defendant in Jigawa State, which the 2nd Defendant organized in breach of Section 84 (5)(b)(i) and (ii) of the Electoral Act 2022, INEC’S Regulations and Guidelines for the Conduct of Political Party Primaries, Article 20.4(ii) (b) of the Constitution of the All Progressives Congress, Articles 22(iii), 25 and 26 of the All Progressives Congress Guidelines for the Nomination of Candidates for the 2023 General Elections read together with All Progressives Congress Notice of Conduct of Special Congress issued by the All Progressives Congress National Organizing Secretary for the purpose of regulating the APC Gubernatorial Primary Election.
9. An Order of the Court directing the 2nd Defendant to pay the Plaintiff the sum of Fifty Million Naira (N50,000,000) only being the cost of prosecuting this Suit.
10. An Order of the Court directing the 2nd Defendant to pay the Plaintiff post-judgment interest of 10% per annum from the date of the judgment until the judgment sum is satisfied.

Appellant personally deposed to a 48-paragraph affidavit in support of his summons and also frontloaded a written address in support of it. His grouse, as already revealed by his questions for determination and reliefs, was about the conduct of the Governorship primary election of 2nd Respondent in Jigawa State on 27th May 2022, in which 1st Respondent was declared the winner and 2nd Respondent’s Governorship candidate for the 2023 general elections. Appellant, it is common ground, contested that primary election. In fact, second respondent, his political party, declared him to have scored 13 votes in that primary election, as against 1st respondent who was said to have scored 1220 votes.

Appellant’s complaints in the originating summons, in the main, were that:
1. Eight Hundred and Twenty-Seven (827) Party Delegates, out of a total number of 1435 delegates in the State from the various Wards in Jigawa State supporting him and directly sponsored by him as State Delegates for the 2nd Respondent’s Ward Congresses in the State, all of whom he further claims to have bought 2nd Respondent’s Delegate forms to contest as State delegates to vote in the said Governorship election and were successfully screened and ‘won unopposed’ as State Delegates of 2nd respondent Ward Congresses of 16th and 17th May 2022 as the said Delegate elections ‘’did not hold and the 2nd respondent’s Officials who were appointed to sent to superintend it did not show up, which made all of the 827 Delegates to win unopposed,” were not allowed to vote in the indirect primary election of 2nd respondent that held on 26th and 27th May 2022.
2. That his said Delegates, having so emerged unopposed, were the only lawful Delegates and ought to participate in the APC Governorship Primary in Jigawa State which was scheduled to hold at Aminu Kano Triangle, Dutse, Jigawa State on the 25th May 2022 by 10.30am.
3. That the said Primary election originally scheduled for 25th May 2022 was ‘surreptitiously’ changed to the 26th May 2022.
4. That the said change in time and date of the elections was done in flagrant breach of 2nd respondent’s Regulations and Guidelines on Gubernatorial Primaries.
5. That no accreditation was done on the 26th May 2022 or 27th May 2022 by 2nd Respondent’s primary election committee from the 8.00am-12.00pm or any time before the purported Gubernatorial Primary Election held in Jigawa State.
6. That on the 27th May 2022, his 827 ‘eligible delegates’ were neither allowed into the venue nor allowed to vote at the primaries; rather, a group of unknown persons who never aspired to become State Delegates were presented in the election day as the Delegates and voted.

Upon service on them of the originating summons, 1st and 2nd respondents’ entered conditional appearances and simultaneously raised preliminary objections to it by way of motions to challenge the jurisdiction of the Court to entertain his summons. They both argued that appellant lacked locus standi to make his complaints of the disenfranchisement of his said unopposed 827 Delegates so the Court also lacked jurisdiction over his summons.

All three respondents also separately filed counter affidavits (to which were each annexed a very heavy bundle of documents) to counter each and every allegation of appellant, including but not limited to his claim that he alone had delegates for the Gubernatorial election; whether he even had the said 827 delegates at all as he claimed; whether the primary election did not hold on 26th May 2022 but was shifted to 27th and 28th May 2022 as he claimed, etc, etc.

In respect of appellant’s said 827 ‘unopposed Delegates’; the 16th and 17th May 2022 Special Ward Congresses of 2nd Respondent that appellant claimed did not hold so delegates who pledged support to him emerged unopposed but were prevented from voting in 2nd Respondent’s Governorship primary election and how that election was not held in compliance with the Electoral Act 2022 and 2nd Respondent’s Party Guidelines and delegates not even accredited before voting, first and second Respondents swore that contrary to appellant’s position, the said 827 unopposed delegates were not the only party members that paid collected and submitted 2nd Respondent’s Delegate forms to contest as State Delegates in its special Ward congresses, that so many other party members, whose names they serialized in their affidavits for each Ward of Jigawa State, also collected and returned delegate forms to contest as State Delegates. First Respondent in particular further swore that in fact, the same 827 persons whom appellant called his supporters and unopposed delegates also pledged support to him and other aspirants in the build up to the special ward Congress for election of delegates. As against appellant’s assertion that 2nd Respondent’s special ward congresses scheduled for 16th and 17th May 2022 did not hold hence his 827 supporters emerged unopposed as delegates, all three respondents swore that 2nd Respondent’s special ward congresses of 16th and 17th May 2022 actually held and the said 827 persons contested it along with other party members but all them – the 827 ‘unopposed delegates’ – lost the election and so did not emerge as delegates; that in fact no person was returned unopposed as State Delegate in the said ward congresses. They swore, too, that it is the Delegates that emerged from 2nd Respondent’s said special ward Congresses of 16th and 17th May 2022, which Congresses were monitored by 3rd respondent (INEC), that participated in the Jigawa State Governorship primary election of 2nd respondent of 26th May that was concluded on 27th May 2022.

Respondents also swore that the said Governorship Primary election of 2nd Respondent was held in substantial compliance with the Electoral Act 2022 and 2nd Respondent’s 2022 Party Guidelines for Primary elections and delegates who emerged from the special ward congresses were accredited and freely voted for aspirants of their choice.

Written submissions were filed along with both the objection and the counter affidavits. Appellant replied the counter affidavits with Further and Better Affidavits.

The learned trial judge heard parties on the preliminary objections and the substantive suit together. He first ruled on the objections and determined that appellant lacked locus standi to complain on behalf of his said 827 delegates so his Court lacked jurisdiction to entertain his summons. On that basis, he first ordered the summons struck out.

He nevertheless also went, commendably, into the merits of his complaints in the originating summons and again adjudged appellant to have failed to make out a case for its grant and so dismissed it.

Appellant is dissatisfied with both arms of the judgment and has lodged the instant appeal of eighteen grounds against it.

In his Brief of Argument prepared by a very long team of lawyers consisting of five Senior Advocates of Nigeria and sixteen members of the outer Bar, all of them led by Dr. Onyechi Ikpeazu, O.O.N., S.A.N., appellant formulated the following three issues for determination of the appeal by this Court:
1. Whether the trial Court was not wrong in holding that he who is an aspirant in the primary election for the nomination of the gubernatorial candidate of Jigawa State of the 2nd respondent lacked the requisite vires/locus standi to complain about infractions pertaining to the provisions of Section 84(5)(b)(i) and (ii) of the Electoral Act 2022, INEC’s Regulations and Guidelines for the conduct of the Political Party Primaries, Articles 22(ii), 25 and 26 of the All Progressives Congress Guidelines for the Nomination of Candidates for the 2023 General Elections.
2. Whether the trial Court was not wrong in holding that the word ‘shall’ in 2nd Respondent’s Guidelines for primary elections gives room for concession so that a breach of same would not affect the validity of the primary election.
3. Whether having regards to the totality of the affidavit and documentary evidence placed before the trial Court the Court was not wrong in holding that appellant did not prove his claims to warrant granting his reliefs sought in the Originating Summons.
Whereas 3rd respondent, also represented by a similarly long array of lawyers and led by two Senior Advocates of Nigeria in Hassan M. Liman S.A.N. and Ibrahim K. Bawa, S.A.N., simply adopted a slight change of language in framing and adopting the same three issues of appellant, Prince Lateef Fagbemi S.A.N. and Chief Hakeem A. Afolabi, S.A.N., leading another team of lawyers for 1st respondent and Y.C. Maikyau (S.A.N.) and Y.A.H. Ruba S.A.N. also leading a third set of counsel for 2nd respondent, formulated four and five issues respectively for 1st and 2nd respondents. I should point out that 1st and 2nd respondents’ said issues, except for the special focus they made on the rightness or otherwise of the decision of the trial judge in rejecting/discountenancing a Certified true copy of a certain Handwritten document (Exhibit FAA36) annexed to appellant’s Agent Mansur Da’u Aliyu’s Further and Better Affidavit in answer to 3rd Respondent’s counter Affidavit, is not also different in content and substance. That document, Exhibit FAA36, incidentally forms the pivot of appellant’s argument regarding the ‘unlawful’ shift of 2nd respondent’s party primary from 26th May 2022 to 27th and 28th May 2022, which shift his counsel further contends also nullified the said party primaries that produced 1st Respondent. I am however of the opinion that Exhibit FAA36, being one of the materials relied on by appellant to prove his summons, goes to issue four of all respondents regarding the correctness or otherwise of the lower Court’s decision on the merits of the case. I shall therefore consider parties’ arguments on Exhibit FAA36 under issue 3 of appellant.

In other words, it is my humble opinion that the following two issues, the first relating to the lower Court’s decision on the preliminary objections of 1st and 2nd Respondents and the second on the merits of the complaints of appellant on his originating summons, will sufficiently determine the appeal:
1. Whether the trial Court was not right in its decision that appellant who was an aspirant in the primary election for the nomination of the gubernatorial candidate of Jigawa State of the 2nd respondent lacked the requisite vires/locus standi to complain about infractions pertaining to the provisions of Section 84(5)(b)(i) and (ii) of the Electoral Act 2022, INEC’s Regulations and Guidelines for the conduct of the Political Party Primaries, Articles 22(ii), 25 and 26 of the All Progressives Congress Guidelines for the Nomination of Candidates for the 2023 General Elections.
2. Whether having regards to the totality of the affidavit and documentary evidence placed before the trial Court it was right in holding that appellant did not prove his claims to warrant the grant of his Originating Summons.

Arguing issue 1 regarding the rightness of the decision of Hassan Dikko J. that appellant lacked locus standi to make his complaint of the disenfranchisement of ‘his’ 827 State Delegates in 2nd respondent’s primary election, Dr. Ikpeazu S.A.N. for appellant first submitted that the justiciability of infractions in the internal affairs of a political party does not arise from common law hence the decisions in Onuoha v. Okafor (1983) 2 SCNLR 244 and Dalhatu v. Turaki & Ors (2003) LPELR-917(SC); that rather, it is a statutory right derived from Section 84(14) of the Electoral Act 2022. Counsel then went on to cite passages from the decision of the Supreme Court in Emmanuel Andy Nnamdi Uba v. Chief George Moghalu & 2 Ors (2022) LPELR-57876 (SC); dicta of Agim, J.C.A., as he then was, in Chukwu v. PDP & Ors (2022) LPELR-40962 (CA); a decision of the Benin Division of this Court in CA/B/106/2022: Hon. Monday Oyore Osagie & Ors v. Victor Enoghama & Ors, as well as my very recent leading judgment of this same Division in PDP & Ors v. Garo & Ors (2022) LPELR-58349 (CA) to submit that appellant was in order in complaining about the infraction of Section 84 of the Electoral Act 2022 by 2nd Respondent and the right of persons qualified to vote at the primaries as his right to make that complaint, according to counsel, is provided for in Section 84 (5) (b) (i) and (ii) of the Electoral Act 2022. He submitted that the procedure for the eligibility of delegates is also further contained in 2nd Respondent’s Regulations and Guidelines for the primary election which was annexed to appellant’s affidavit as Exhibit FAA5. He said depositions were also made to that effect by appellant in paragraphs 11(i), 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 24, 25, 27, 28, 29, 33, and 34 of his said affidavit. He argued that appellant’s complaints therefore fall within the right donated to him as an aspirant of 2nd respondent’s primary election by Section 84 (14) of the same Electoral Act 2022 once he met the conditions provided there, which conditions counsel submitted he met. Learned silk argued that by the provisions aforementioned of the Electoral Act 2022 as well as the Regulations and Guidelines of 2nd respondent, it is trite that there is a right to complain where it is shown that persons who ought to be delegates are not allowed to vote; that the condition that gives a person the locus standi to complain is that he must participate in the primary elections in question, which appellant did as the lower Court also found, so the Federal High Court was wrong when it held that appellant’s action was outside its purview and not justiciable.

Learned silk also reproduced the lower Court’s holding that “It is effortlessly noticeable that the plaintiff’s resentments against the defendants started on the 16th and 17th of May 2022 when the 2nd defendant’s special congress to elect delegates were held but he (Plaintiff) became aware of the alleged irregularities on the 19th May 2022 when he was informed by the persons he named at paragraph 27 that Delegates Elections did not hold and the Officials of the 2nd defendant who were appointed to superintend the election did not show up, which made all the 827 delegates to win unopposed,” and submitted that appellant’s cause of action was not statute barred in that a person cannot have a right of action where he is not complaining about the outcome of an action but about his legitimate expectation that persons who fulfilled the conditions in 2nd Respondent’s Party Regulations and Guidelines would be deemed unopposed because no election was held. Counsel submitted that 3rd Respondent, INEC, which presented the Report also confirmed that the delegates emerged by consensus. Learned silk ended by urging us to resolve this issue in appellant’s favour.

All three respondents supported the decision of the trial judge and argued that appellant really lacked locus standi to make the complaints he took to the lower Court in his originating summons and so that Court was correct in its decision and bereft of jurisdiction to entertain his summons. Prince Lateef Fagbemi, S.A.N., for 1st respondent, and Y.C. Maikyau, S.A.N. and Ruba, S.A.N. for 2nd Respondent argued, in particular, that the fulcrum of appellant’s case was the emergence of 827 ‘unopposed’ delegates who were allegedly refused entry into the venue of the primary election conducted on the 26th and 27th of May 2022. Counsel submitted that by that complaint appellant took upon himself the responsibility of complaining on behalf of the said ‘mysterious’ 827 delegates, as counsel labeled them – a task they argued he lacked a place of standing to do so the trial Court was right in its decision to that effect.

Mr. Maikyau S.A.N. for 2nd respondent further argued that Section 285(14) of the Constitution of the Federal of Nigeria 1999 as amended read along with 84 (5) (b) (i) and (ii) of the Electoral Act 2022 does not contemplate Ward Congress as same is internal affair of a political party. In support of this line of argument, learned counsel also cited my leading judgment in PDP & Ors v. Garo & Ors (2022) LPELR-58349 (CA). Counsel also cited fairly extensively dicta of my brother Georgewill, J.C.A., in APC & Ors v. Sulaiman & Ors (2022) LPELR-56938 (CA), even as my learned brother left no one in doubt in the very pronouncements quoted by counsel that he was only dealing with ward leadership matters in the case and not with election of let alone right of such delegates to vote and the locus standi of an aspirant to complain if their disenfranchisement at a primary election.

Mr. Bawa, S.A.N., for 3rd appellant also argued along the lines of 1st and 2nd respondent’s counsel. Learned also argued that submitted that the standing to complain of the disenfranchisement of the 827 ‘delegates’ belonged exclusively to the said 827 persons; that appellant lacked standing to complain on their behalf, so the lower Court was correct in its decision.

Dr. Ikpeazu filed Reply Briefs to the Briefs of Arguments of Respondents and there tried to distinguish the cases cited by them and make further clarifications on their arguments.

Resolution of issue of LOCUS STANDI of Appellant
Having carefully perused the judgment of the lower Court, the arguments of counsel and also the relevant provisions of the Electoral Act 2022 and cases cited by counsel on both sides, and also having given a hard look at the grouses of appellant before the lower Court, I must say that I am not by any means persuaded that the lower Court was correct in its decision declining jurisdiction over the originating summons of appellant on the ground that appellant lacked locus standi over his complaints of disenfranchisement by 2nd respondent of his said 827 State ‘Delegates’ to vote at the 26th and 27th May 2022 Governorship primary election of 2nd Respondent. In the first place, I note that the same Court had itself found that appellant had locus standi over his complaints, when it first held thus in its judgment at page 3270 of the records:
“Going by the facts supplied by the Plaintiff (in) Paragraphs 1-11(ii), 22 and 23, 30 -32 of the affidavit in support of the Originating summons, it is clear that the plaintiff is statutorily armed with the locus standi to institute and prosecute this suit having participated in the Primary Election as an aspirant, I so hold.” (Italics mine)

‘The expression ‘this suit’ employed by the trial judge could not have excluded appellant’s complaints in his originating summons one of which was that 827 ‘unopposed’ State Delegates were wrongfully denied the right to vote in 2nd respondent’s indirect Governorship primary election. It therefore appears to me incongruous and a bit befuddling for the same Court to turn around to hold again that the same appellant lacked locus standi to prosecute the same action and his Court without jurisdiction to entertain his case.

But even going beyond that and assuming that the trial judge in the portion of his judgment I have cited did not mean locus standi in the sense I am using it, it still does not appear to me that he was right in his decision that appellant lacked standi to complain of denial of voting right to his ‘lawful’ 827 Delegates who he claimed so emerged as Delegates because they were the only ones that bought the party’s forms and were screened to contest as State Delegates at its Ward Congresses of 16th and 17th May 2022 and so they were ‘returned unopposed.’ Whether he could make out his assertion that the said 827 Delegates were actually lawful delegates only becomes relevant and germane when the originating summons is to be determined on its merits. Locus standi, it is also the law, is determined on the plaintiff’s writ of summons and statement of claim alone and not the statement of defence: see People’s Voice Communication Ltd & Anor v. Alhaji Mohammed Lawal & Anor (2004) LPELR-6036 (CA) p. 22-23, 36; Global Trans Oceanico SA v. Free Ent. (Nig.) Ltd (2001) 5 NWLR (Pt.706) 426; Ukaegbu & Ors v. Nwanuforo & Ors (2015) LPELR-24571 (CA); Taiwo v. Adegboro & Anor (2011) 11 NWLR (Pt. 1259) 562 at 580, (2011) LPELR 3133(SC) p.15.
Furthermore, in determining whether a party has locus standi, the chances that the action may not succeed is an irrelevant consideration: see Taiwo v. Adegboro & Anor (2011) 11 NWLR (Pt. 1259) 562 at 580, (2011) LPELR 3133(SC) p.15; Ejiwunmi v. Costain (W.A.) Plc (1998) 12 NWLR (Pt 576) p.149; Williams v. Dawodu (1998) 4 NWLR (Pt. 87) 189; A.G. Kaduna State v. Hassan (1985) 2 NWLR (Pt. 8) 483. As proceedings commenced by way of originating summons do not require filing a statement of claim, the affidavit in support of the summons takes the place of the statement of claim.

Now, in determining whether appellant as aspirant possessed standing over his said complaint of wrongful disenfranchisement of his ‘unopposed’ 827 Delegates by 2nd respondent in its primary election of 26th and 27th May 2022, the focus of the Court has to be on Section 84 (14) of the Electoral Act 2022 stating that:
“Notwithstanding the provisions of this 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 have not been complied with in the selection or nomination of a candidate of a political party for election may apply to the Federal High Court for redress.”
This provision conferring special locus standi on aspirants of political party primary must be given its full effect by the Court once its requirements are met by the plaintiff. By this provision the special right/locus conferred on an ‘aspirant’ which term, it is now judicially settled, refers to only persons who actually contested the political party primary election in issue (See PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85; Eze v. PDP (2019) 1 NWLR (PT 1652) 23, Etim v. Akpan & Ors (2018) LPELR-44904 S.C.), is limited to complaints of non-compliance by the political party concerned with:
(1) any of the provisions of the Electoral Act 2022 and
(2) its own guidelines
in the selection or nomination of a candidate of a political party for election. Appellant’s complaint in his originating summons is that delegates for 2nd respondent’s indirect Governorship primary election who lawfully emerged from the processes set out by 2nd Respondent were denied their right to vote in the said 2nd respondent’s primary election and persons who were not Delegates and never even purchased forms for the said election as stipulated in the 2nd Respondent’s Regulations and Guidelines for the Primary elections were allowed to vote in their place.
Can such a complaint be properly tagged one falling outside the purview of Section 84(14) of the Electoral Act 2022? Certainly not! Section 84 of the Electoral Act 2022 places premium on internal democracy in political parties as regards the selection of their candidates, even more so where such candidates are to be nominated by the party through indirect primaries, as in the case of the 2nd Respondent’s Jigawa State Governorship primary election.

Where a political party settles for indirect primaries for nomination of its Governorship candidate as 2nd respondent did in this case, the procedure for that election is a set out in Section 84 (5) thus:
(5) A political party that adopts the system of indirect primaries for the choice of its candidates shall adopt the procedure outlined –
(b) In the case of nominations to the position of Governorship candidate, the political party shall, where it intends to sponsor candidates –
(i) hold a special congress in the State Capital or any other place within the State with Delegates voting for aspirants of their choice at the congress to be held on a specific date appointed by the National Executive Committee (NEC) of the party, and
(ii) The aspirant with the highest number of votes cast at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party, for the particular State.
Section 84(8) then specifically underscores the need for the democratic emergence of the Delegates aforementioned to vote at the Governorship primaries by stating that:
(8) A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its Constitution and rule the procedure for the democratic election of delegates to vote at the convention, congress or meeting.
It is pursuant to Section 84(8) above of the Electoral Act 2022 that 2nd respondent in its Guidelines for the Nomination of Candidates for the 2023 General Elections annexed as Exhibit FAA6 to Appellant’s affidavit in support of the summons made the following provisions in its Paragraph 22(B) (iii) with respect to Governorship Elections:
(iii) The Five (5) elected State Delegates shall be the DELEGATES to vote to nominate the Governorship Candidates of the Party as prescribed in Section 84(5)(b)(i)(ii) of the Electoral Act 2022 (as amended). (Emphasis mine)
The Delegates shall vote by Secret Ballot at the designated Venue in the State Capital and the aspirant with the highest number of votes shall be declared as the winner accordingly.

The complaint of appellant, an aspirant who it is common ground contested 2nd respondent’s primary election and even scored 13 votes, is that these provisions of both the Electoral Act 2022 and the Guidelines of 2nd respondent which emphasize participation in indirect primary election by only lawfully elected delegates was not complied with in the 2nd Respondent’s Jigawa State Governorship primary election in that persons who were not elected or did not properly emerge as delegates were allowed to vote as delegates in place of the only 827 Delegates who emerged democratically as the Delegates for that same election. Section 84(14) of the Electoral Act 2022 clearly covers such a complaint and confers special locus standi on appellant to make it. That is even as appellant would have ordinarily not possessed standing under the general principles of the common law to make that complaint, he himself not being a delegate in the said primary election. That is the point this Court in its leading judgment delivered by my humble self also made in PDP & Ors v. Garo & Ors (2022) LPELR-58349 (CA) cited by counsel on both sides, when I said there that:
“Section 84(5) of that statute states that a political party that adopts the method of indirect primaries for the choice of its Presidential candidate as 1st appellant did shall hold a Special Congress where National Delegates shall vote for aspirants of their choice. The Act is however completely silent on the right of such delegates, National or otherwise, to approach the Court for redress if they are shortchanged by their political party and new ones appointed to replace them. Rather, it expressly provides that it is only a member of the political party who actually contested its primary election where the breach took place that can complain. That provision is located in its Section 84(14) stating that: …” (Italics mine)
It is the same point Agim, J.C.A., as he then was, also made in CHUKWU v. PDP & Ors (2016) LPELR-40962(CA) when his Lordship said there thus:
“The trial Court was right when it held that the appellant had no locus standi to complain about the conduct and outcome of the ward special congress of 1-11-2014 that produced the list of ad hoc delegates that voted in the primary election of 8-19-2014. But the reason it gave for this holding is wrong. The reason it gave was that the appellant did not participate in the congress special ward congress he was already an automatic delegate to the special State congress of 8-12-2014 by virtue of being aspirant screened and cleared to contest the primary election of 8-12-2014 and that not having contested as a candidate for ad-hoc ward delegate in the special ward congress he lacked the locus standi to complain about it, on the principle that an aspirant who did not participate in an election cannot sue complaining about the said election. The implication of this holding is that, no aspirant who participated in the primary election can complain about the conduct and outcome of the special ward congress that elected the Ad Hoc delegates. The reason that correctly supports the above holding of the trial Court is that because the appellant did not participate in the primary election of 8-12-2014, he lacked the locus standi to sue complaining about the conduct and outcome of the primary election, which process the election of ward ad-hoc delegate is part of. I do not agree with the classification of the election of ward ad-hoc delegates on 11-2014 as a pre-primary election activity which does not come within the confine and scope of S.87 of the Electoral Act 2010 as amended. The ad-hoc delegates are elected to vote in the gubernatorial primary election. So the special ward congress that elects them is for the purpose of the voting at the primary election to Select or nominate the party’s candidate for the general election to a certain public office. In respect of nomination of the 1st respondent’s candidate for election to the office of Governor, Article 2 of the 1st respondent’s Electoral Guidelines 2014 thusly-
‘For the purpose of nominating the party’s candidates for the offices of Governor of a State, member of the National Assembly… Each ward chapter of the party shall elect three (8) Ad Hoc Delegates at a special ward congress, at least one of whom shall be a woman. The same delegates shall participate in the special congresses for the nomination of the candidates in this paragraph.”
“It is obvious that without the election of the Ad Hoc Delegates to elect the party’s candidate in the primary election, the primary election would not hold. Article 3 of the said 2014 Electoral Guidelines stipulates how the 3 Ad-Hoc Delegates per ward shall be elected by the special ward congress. It states thusly:
‘While the three (8) Ad-Hoc delegates shall be elected by all registered and card carrying member in the ward. The three (8) aspirant with the Highest votes shall be returned elected. Provided that where no woman is among the three (3) aspirants with highest votes, the female aspirant that scored the votes among female aspirants shall be declared the third delegate.’
“Only members of the 1st respondent who were duly elected as ward Ad-Hoc Delegates by their special ward congress in accordance with Article 2 and 3 of the 2014 Electoral Guidelines are competent to vote as Ad-Hoc Delegates at the Special State congress (primary election) to nominate the party’s gubernatorial candidate. Therefore, an aspirant who participated in the gubernatorial primary election can complain that the nomination or selection of the party’s candidate for the election has not complied with the Electoral Act 2010 and the 1st respondents Electoral Guidelines, because the Ad-Hoc Delegates that voted in the Special state congress were not elected as such in accordance with Articles 2 and 3 of the 2019 Electoral Guidelines of the 1st respondent. It is a complaint that clearly comes within the purview of the complaint which S. 87 (9) of the Electoral Act gives an aspirant who participated in the primary election the right to make. The danger of holding otherwise is too obvious. If the complaint that the persons who voted as Ward Ad-Hoc Delegates in the primary election had no right to so Vote because they were not duly elected as such ward Ad-Hoc Delegates is not within the scope of the complain Section 87(9) of the Electoral Act 2010 gives an aspirant who participated in a primary election to make, then the Court would lack the Jurisdiction to determine if the persons who voted as ward Ad-Hoc delegates during the nomination of an aspirant as the party’s candidate for an election were duly elected as such ward ad hoc delegates in accordance with Articles 2 and 3 of the 1st respondents Electoral Guideline 2014. In that event the political party would become the sole determinant of who should be a ward ad hoc delegate at the special State congress and any list of such ad hoc delegates approved by it would be beyond judicial scrutiny. This can lead to a situation where persons who are not duly elected ward ad hoc delegate can be used to vote during primary elections with impunity, with the result that primary elections outcomes would not represent the wishes of the generality of members of the political party. In a country like ours, where politicians have a proclivity of habitual disobedience of their own political party Constitution and Electoral Guidelines as well as our national laws, it would be dangerous to our general well being and the development of genuine democracy to preclude from the jurisdiction of our Courts, the question of whether a party’s candidate for an election was elected by legal delegates in the primary election. If the appellant had participated in the primary election of 8-12-2014, he would have had the locus standi to bring the complaint against the entire process of the primary election from the special ward congress of 1-11-2014 to elect ward Ad hoc Delegates to the State special congress of 8-12-2014 that elected the 3rd respondent as the 1st respondent’s candidate for the 2014-2015 Ebonyi State Governorship election.”
Dr. Ikpeazu, OON. S.A.N. for appellant informed us at the hearing of the appeal that the foregoing position of this Court on the issue has been since affirmed by the Apex Court in the case of Hon. Monday Iyore Osagie & Ors v. Victor Enoghama & Ors SC/CV/789/22 in its judgment delivered on the 30th of September 2022. Learned silk said he was counsel in the matter and, on our request, gave us a yet-to-be-certified copy of the leading judgment of Agim, JSC in the case which affirms his assertion.
From all the foregoing, it is glaring, in my opinion that the lower Court was wrong in adjudging appellant as lacking locus standi to complain on the exclusion from voting at 2nd respondent’s primary election of persons he claims were Delegates in the same election.

At any rate, and this is also very important, appellant did not confine his complaints in the originating summons to only the issue of disenfranchisement of his said 827 delegates; he also complained in the summons that: (1) 2nd Respondent did not comply with the times stated in its Regulations and Guidelines for the conduct of its Governorship primary in Jigawa State; (2) that 2nd Respondent also moved surreptitiously and without notice to him the date of its primaries; (3) that 2nd Respondent did not also give 3rd respondent (INEC) the requisite 21 days’ notice of its Governorship primary election as stipulated by Section 82(1) of the Electoral Act 2022, and (4) that the said primary election was conducted without accreditation of voters, contrary to its Guidelines. It cannot by any means be seriously contended that appellant, as someone who contested the said primary election, did not also possesses locus standi under Section 84(14) of the Electoral Act 2022 to complain about these said infractions and his case deserving of an order striking it out as the lower Court did when it held/ordered that:
“In a nutshell, the plaintiff ought to have tailored his complaints to be accommodated within Section 84(14) of the Electoral Act 2022 honed by Section 285 (14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The reliefs sought by the plaintiff are manifestly incompetent and the plaintiff’s claim amounts to abuse of Court process. These fundamental defects have rendered the Plaintiff’s suit incompetent with the resultant consequence that this Court cannot adjudicate upon same and make valid orders therefore. Suit No FHC/DT/CS/07/2022 is accordingly struck out for want of jurisdiction.”
Before I finally leave this issue, let me quickly address Mr. Bawa’s argument of likely statue bar. On that, I must say that by the same provisions of Section 84(14) of the Electoral Act 2022, appellant’s right and cause of action to complain of infractions of the provisions of the Electoral Act and the Regulations and Guidelines of 2nd respondent in the conduct of its Jigawa State Party Primary election can only crystallize and ripen to be enforced by him upon his contesting the primary election in issue: see again the cases of PDP v. Sylva, Eze v. PDP and Etim v. Akpan & Ors earlier cited.

Applying that to this case of appellant, it becomes quite clear that appellant’s Constitutional 14 days to commence action as stipulated by Section 285 of the 1999 Constitution (as amended) of this country to complain about 2nd respondent’s infractions of the provisions of the Electoral Act 2022 and its own Guidelines for the election only crystallize and started to run from the time he contested the said primary election on 26th and 27th May 2022 and the infractions, to wit disenfranchisement of the delegates, etc., occurred. It cannot be anytime earlier as suggested by Mr. Bawa.

The long and short of all the foregoing is that this issue which pertains to the correctness of the finding of the lower Court of that appellant lacked locus standi over his summons and the subsequent order of that Court declining jurisdiction over the summons and striking it out is resolved in favour of appellant.

ISSUE 2: THE RIGHTNESS OR OTHERWISE OF THE DECISION OF THE LOWER COURT ON THE MERITS OF THE COMPLAINTS OF APPELLANT ON THE ORIGINATING SUMMONS.
On appellant’s issue 2 as to whether the trial Court was not right in its decision that the word ‘shall’ in 2nd Respondent’s Guidelines for the time to hold primary election allows room for concession so that a breach of same would not affect the validity of the said primary election, Dr. Ikpeazu relying heavily on pronouncements of Justices of the Apex Court in the case of Emmanuel Andy Nnamdi Uba v. Chief George Moghalu & 2 Ors (2022) LPELR-57876 (SC) argued that the Guidelines for the conduct of the primary of a political party is fundamental and compliance is critical so where it is shown that a political party breached its Guidelines the Court will not hesitate to set aside its primaries. Counsel submitted that the facts of this case shows that the Governorship primaries of 2nd respondent in issue was originally scheduled for 26th May 2022 as shown in Exhibit FAA9A but 2nd respondent deliberately refused to conduct the election as at when due from 8.00am in the morning to 2.00pm in the afternoon, that rather, it surreptitiously changed the time of the conduct of the primary to 27th May 2022 as deposed by appellant in paragraphs 29 and 30 of his affidavit. Counsel contended that Exhibits FAA36 (a handwritten document) and FAA37 which are both certified as true copies by 3rd Respondent’s staff and corroborate each other and show that the said Jigawa State Governorship Primary Election of 2nd Respondent was actually held on 27th May 2022. Despite that declaration in said two documents that the election was held on 27th -28th May 2022, the trial judge, counsel submitted, wrongly held that Article 26 of the Guidelines of 2nd Respondent subjected itself to a measure of laxity so the word ‘shall’ employed therein does not mean that it is obligatory that the election be held between 8.00 am and 2.000 pm and no more.

Counsel argued that the trial judge was also wrong in discountenancing Exhibit FAA36 on the grounds that it was not signed, even when it was certified. Learned senior counsel cited Onnoghen, J.S.C. (later CJN) in Ahmed v. CBN (2013) LPELR-20744 (SC) P.24; Ashakacem Plc v. Asharatul Mubashshurun Investment Plc (2019) LPELR-46541 (SC) and Emeka v. Chuba Okadigbo & Ors (2017) LPELR-41920 (SC) and a raft of decisions of this Court to argue that a certified true copy of document need not be signed by the maker of the document, that once a document is duly authenticated it cannot be rejected on grounds of non-signing, so the lower Court was wrong in rejecting Exhibit FAA36 on grounds of its non-signing by its maker, even more so as the officer of 3rd respondent that certified it even appeared for 3rd respondent in the proceedings.

Learned senior counsel submitted that with Exhibit FAA36, appellant proved his case. He submitted that by the decision of the Apex Court in Emmanuel Andy Nnamdi Uba v. Chief George Moghalu & 2 Ors supra, even slight adjustment of time of election contrary to the Guidelines and Timetable of a political party renders the election null and void. It said it mattered not that there was accreditation of delegates on the 26th of May 2022 as whatever was done on that day was a nullity since that was not the date and time scheduled for the conduct of the election.

Learned counsel also submitted that Section 82(1) of the Electoral Act 2022 mandates 2nd respondent to give 3rd Respondent (INEC) 21 days to notice of the time and venue of its primaries; that the notice 2nd respondent gave 3rd respondent did not meet that 21-day requirement so its entire primary election that produced 1st respondent was invalid as no candidate can emerge from such an exercise according to Section 82(5) of the same Electoral Act 2022.

On issue 3 of Appellant, Learned senior counsel repeated his earlier argument that persons who were not democratically elected as Delegates of 2nd respondent voted in the primary election in question thus breaching Section 84(5) (b) (ii) of the Electoral Act 2022; that appellant also proved that the election scheduled for 26th May 2022 was held between 27th and 28th May 2022 so that also nullified the primaries and the lower Court was wrong in holding to the contrary.

Counsel to all three Respondents supported the decision of the trial Court on all the issues raised by appellant and submitted that appellant did not prove his case so his case was properly dismissed by the trial judge. They all argued, too, that Exhibit FAA36 being unsigned by its maker, it was worthless and the trial judge correct in so holding and discountenancing it. They also argued that the word ‘shall’ in Article 26 of the Guidelines of 2nd Respondent does not mean obligatory but rather allows room for discretion; that appellant did not also prove that the primary election was moved from 26th May 2022 to 27th and 28th May 2022; that 2nd respondent did not also breach Section 82(1) of the Electoral Act 2022 in rescheduling the election from 25th May 2022 to 26th May 2022; that appellant did not also prove that his said 827 delegates were properly elected in the Ward Congresses of 2nd Respondent and/or that persons other than the Delegates that were elected as delegates from duly conducted ward congresses were allowed to vote and in 2nd respondent’s said primary election.

Decision of this Court on The Merits of the Originating Summons
I wish to first observe that the areas of conflict and disagreement between appellant and respondents in their originating summons, particularly as regards the proper emergence of his delegates for the primary election and whether other party members contested the same special ward congresses for election of State Delegates, was so great on the affidavits and documents presented by them in support of their various positions that I am surprised that the lower Court did not see it fit to order parties to file pleadings. Originating summons is meant only for interpreting documents and answering short questions of law where parties are not in disagreement or substantial disagreement on facts.
Here Respondents denied, and did so with facts and documents, virtually every assertion of appellant. Those assertions also compelled appellant to cause his agent one Mansur Da’u Aliyu to swear to further and Better Affidavits. In those circumstances, originating summons, though filed, ought not to have been proceeded with in determining the case. Pleadings ought to have been ordered and witnesses called and examined in open Court for the Court to be better equipped to resolve the multifarious issues raised by parties including but not limited to who among the two different sets of delegates bandied by appellant and respondents were the true delegates that emerged from 2nd respondent’s ward congresses, whether the handwritten but unsigned Exhibit FAA36 which does not show evidence of certification was genuine.

That having been said and given also that parties did not make an issue of it, I shall try to answer the issues raised by appellant on his issues 2 and 3, which issues I have reduced to only one, namely, whether appellant proved his case before the lower Court and the Court wrong in holding that he did not prove it. In doing that, I shall endeavour to consider counsel’s complaints one after the other.
1. The complaint of appellant that his 827 Delegates were not only lawful Delegates for 2nd respondent’s Primary election they having been returned opposed, they were also the only lawful delegates for that election but were wrongfully prevented from voting in the primary.

Not only is this assertion of appellant that only 827 persons sponsored by him out of an agreed total of 1497 State delegates hard to believe, it is surprising that appellant who had the onus of its proof did not deem it necessary to cause even one of his said unopposed delegates to confirm his assertion first that he/she is among the said ‘only’ unopposed delegates but also that he/she was prevented from voting in the Governorship primary. In the absence of that evidence, appellant’s assertion seems hollow and is dead on arrival. That is even as I am also in complete agreement with Respondents that, appellant’s admission that the special ward congresses of 2nd respondent of 16th and 17th May 2022 did not even hold knocks the bottom off his case of lawful emergence of his said delegates; for if there was no election then it is impossible to talk of delegates emerging as one cannot place something on nothing.

In fact, to successfully prove his assertion that his said mysterious 827 delegates were the only ones that bought 2nd respondent’s forms and were screened, appellant would need to tender documents from 2nd respondent where the said entries of those who purchased its forms was made. That is even the more necessary as appellant and his agent never claimed that they are staff or officials of 2nd respondent to be privy to who bought and did not buy its delegates forms from 2nd respondent. Respondents, it should be recalled, countered his assertion with documents showing that his so called delegates were not even delegates in its 26th and 27th May 2022 primary election because they all not elected at its special ward congresses, and that there indeed other party members who bought their delegates forms and were elected and so were its authentic delegates.

The onus of proof and to do so with credible evidence that his said 827 delegates were the authentic ones rested at all times on appellant, a burden he never discharged. Put simply, appellant’s argument and the evidence he put forward in support of his claim of his 827 Delegates being the only ones that bought delegate forms of 2nd respondent and so the only ones that were entitled to vote at 2nd Respondent’s primary election of 26th and 27th May 2022 is hollow and do not all measure up to the standard required for the Court to grant him its discretionary declaratory orders. He can only succeed on his declaratory and other reliefs on the strength of his case and not on the grounds of any weakness in the case of Respondents.
2. Appellant’s contention that 2nd Respondent’s primary election was not conducted on the 26th May 2022 it was scheduled for but conducted between 27th to 28th May 2008 and so that also invalidates the election.

This contention of appellant was based on Exhibits FAA36 and FAA37 referred to in the Further and Better affidavit of his agent Mansur Da’u Aliyu in response to 3rd respondent’s counter affidavit contained at pages 2870-2873 of Volume 4 of the records of appeal. These two documents are again referenced as Exhibits MDA19A and MDA20A of the same deponent in his Further and Better Affidavit to 2nd defendants Counter affidavit. This second affidavit of Mr. Aliyu spans pages 2906 – 2909 of Volume 4 of the records while Exhibits MDA19A (same as Exhibit FAA36) and MDA20A are contained at pages 3051 -3052 and 3058-3063 respectively of Volume 4 of the records of appeal.

As mentioned earlier, these two documents are certified, but whereas Exhibit FAA36 is handwritten, unsigned and does not even show evidence of payment of certification fees, even as appellant in the same Affidavit referenced a payment receipt he labeled as Exhibit FAA38 which he never tendered, Exhibit FAA37 is typed and signed by its maker. The difference between the two documents do not end there, for while unsigned Exhibit FAA36/MDA19A states on its face that the Governorship primaries in Jigawa State was held on the 27th of May to 28th May 2022, thus supporting appellant’s case, typewritten and signed Exhibit MDA20A supports the position of Respondents that the same primary election was conducted only on the 26th to 27th May 2022 thereby. As said earlier, the trial judge labeled unsigned Exhibit FAA36/MDA19A useless and so discountenanced it. Dr. Ikpeazu’s argument is that since the said Exhibit was certified, though unsigned, the lower Court was wrong in discountenancing it; that it is admissible going by the decisions in Ahmed v. CBN (2013) LPELR-20744 (SC) P.24; Ashakacem Plc v. Asharatul Mubashshurun Investment Plc (2019) LPELR-46541 (SC) and Emeka v. Chuba Okadigbo & Ors (2017) LPELR-41920 (SC). Learned silk also invoked Section 146 of the Evidence Act 2011 to submit that the said unsigned document ought to be presumed genuine since it was certified as a true copy.

Now, the response of the trial judge to the said Exhibit FAA36/MDA19A was exactly as follows:
“I scrutinized exhibit FAA36 and found it incomplete, unsigned, bears no author or date of production and therefore worthless document without evidential value.”

He then went on to cite some decisions, including the now very notorious pronouncement of Niki Tobi, JSC, in Omega Bank Nig. Ltd v. O.B.C. Ltd (2005) LPELR-2636 (SC) and finally held thus on the same exhibit FAA36/MDA19A:
“Thus I consider Exhibit FAA36 inadmissible and it is hereby discountenanced.”

First, I find it difficult to agree with the learned trial judge that an unsigned document is always inadmissible in evidence. The cases of Jinadu v. Esurombi-Aro (2009)14 NWLR (PT 949) 142 at 188, (2009) LPELR-1614 (SC) p. 31-32 (SC); Ashakacem Plc v. Mubashshurun Inv. Ltd (2018) 77 NSCQR 109, (2019) LPELR-46541 (SC) p. 27-29, Ogungbele v. Oladele (2004) 27 WRN 153 at 163, 1665-166, S.P.D.C. (Nig) Ltd v. Olarewaju (2002) 16 NWLR (PT 792) 38 at 69 and even Omega Bank (Nig.) Plc v. OBC Ltd (2005) 8 NWLR (PT 928) 547 (Tobi, J.S.C.) all confirm that an unsigned document is admissible in evidence; that the issue of lack of signature only goes to weight to be attached to the document. That seems to me very sound reasoning, for I do not see how it can be seriously asserted, for instance, that if Mr. A publishes in his own handwriting a libelous document against me but smartly decides not to sign it, the libelous document will be rejected in evidence and my suit against him for libel will collapse, may be even in limine, on the ground only that he, Mr. A did not sign it, and that that will be case even if I have witnesses that are familiar with his handwriting to prove, pursuant to Sections 93(1) and 101 of the Evidence 2011, that he actually wrote the libelous statement. Absence of signature in a document, I repeat, goes to weight to be attached to the document by the Court which is a matter of probative value of the same document; it is not an issue that affects admissibility of the document which comes before weight in the hierarchy of our adjectival laws. Once a piece of evidence, including document, is relevant to the proceedings in the sense that it is pleaded or facts that will render it admissible are pleaded and it passes every other Law guiding its admissibility, it becomes admissible in evidence. That point was also made clearly by even Niki Tobi, JSC, himself in his now very famous dicta in Omega Bank (Nig.) Plc v. OBC Ltd (2005) 8 NWLR (PT 928) 547; (2005) LPELR-2636 (SC) when his Lordship said at p. 36-37 (LPELR):
“In the hierarchy of our adjectival laws, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things. See Ayeni v. Dada (1978) 3 S.C. 35.…
“I do not think I can reject Exhibit P6. The case law will not allow me to do so. This is because exhibit P6 is relevant in the circumstances of the case. That notwithstanding, the case law allows me not to attach any probative value and that is what I do now.” (Italics mine).
Equally instructive is the dictum of Oguntade, J.S.C., in a later decision of the Apex Court, and a leading judgment of that Court for that matter (unlike the dictum of Tobi JSC in Omega Bank Plc supra which was not only made in a concurring judgment but even on an issue not addressed in the lead judgment) in Jinadu v. Esurombi-Aro (2009)14 NWLR (PT 949) 142 at 188, (2009) LPELR-1614 (SC) p. 31-32 (SC) (2009) LPELR-1614 (SC) p. 31-32 para. G-A that:
“I do not consider exhibits R and S inadmissible in evidence but being documents not bearing the signatures of the makers, they should attract little or no weight.”
See also the even much more recent decision of the Apex Court in Ashakacem Plc v. Mubashshurun Inv. Ltd (2018) 77 NSCQR 109, (2019) LPELR-46541 (SC) p. 27-29, per Mary Peter-Odili, JSC, and all the other cases earlier cited on it by me here.
But that is where my disagreement with the trial judge ends, for I am unable to agree with learned Silk for appellant that handwritten and unsigned FAA36/MDA19A was in the entire circumstances of this case not worthless and so deserved some weight to be attached to it by the trial Court. Admissibility of evidence and probative value to be attached to a piece of evidence so admitted as I have shown are two different things. In this case, the evidence on record concerning the weight of exhibit FAA36 seems to me as light as the feather of the smallest bird in the bush. For instance, I have shown that unlike Exhibit MDA20A which is not only on 3rd Respondent’s letter-headed paper but signed by its Resident Electoral Commissioner of 3rd Respondent for Jigawa State, Dr. Mahmuda Isah, and also shows payment of certification fee of ₦1140.00 at its foot, handwritten and unsigned Exhibit FAA36 (MDA19A) does not even have any evidence of fee payment. Even the receipt of fee payment for its certification, which appellant’s agent Mansu Da’u Aliyu claimed was annexed to his affidavit as Exhibit FAA38, is not found anywhere in the records.

The same appellant’s agent also swore in his affidavit that appellant’s lawyer procured Exhibit FAA36 by applying to 3rd respondent and the said letter was annexed to his affidavit as Exhibit FAA37A. Again, that document is not there. In the face of all these very dark cobwebs surrounding the making and procurement of Exhibit FAA36/MDA19A, one cannot but agree with the trial judge that it is truly a worthless document though admissible in evidence.

The presumption of genuineness in Section 146 of the Evidence Act 2011 invoked by Dr. Ikpeazu cannot also inure to Exhibit FAA36/MDA19A, because by the very provisions of Section 146, a certified true copy of a document must be substantially in the manner required by law for that presumption of genuineness to apply. A document which the appellant swore was certified upon application and upon payment of certification fees yet neither the said application nor payment receipt expressly referenced by appellant is anywhere to be found cannot enjoy that presumption of genuineness. If anything, the presumption that will apply in the circumstances is that the said receipt never existed and exhibit FAA36 is a dubious document probably only certified through the backdoor.

Incidentally, without Exhibit FAA36/MDA19A the contention of appellant that the Jigawa State primary election of 2nd respondent was held on 27th to 28th May 2022 completely loses potency. What is more, all appellant’s reliefs in his originating summons consistently claimed that the said primary election was conducted on 27th May, 2022 – as against his contention now that the same election was shifted to and held only between 27th and 28th May, 2022. Appellant must be consistent in presenting his case. He cannot approbate and reprobate.
3. Whether the trial Court was not wrong in holding that the word ‘shall’ in 2nd Respondent’s Guidelines regarding time to hold primary election allowed room for concession so that a breach of same would not necessarily affect the validity of the said primary election.

The relevant provisions of Article 26 of 2nd Respondent’s Guidelines read as follows:
(e) Accreditation shall be done by the Returning officer between the hours of 8.00am to 12.00pm. Any member, aspirant or agent who arrives after the commencement of voting shall not be accredited or allowed to vote.
(g) At 12.00pm or whenever accreditation ends, The Returning Officer shall declare accreditation closed, but ensure that all eligible members already on the queue for accreditation by 12.00pm are accredited.
(i) Voting shall commence immediately accreditation ends and continue till 2.oo pm when voting closes.
Here again I am in agreement with the trial judge that these provisions of Respondent’s Guidelines for its primary election allows for minor concessions/adjustment where the situation calls for it. For instance it even states that though accreditation time is 8.00am – 12.00 pm, any voter in the queue for accreditation before 12.00 pm should be accredited and not turned away. Taking that provision into account and juxtaposing it on our ubiquitous Africa-man’s-time way of doing things, supposing even the entire primary election, not to talk of just accreditation, starts late as we all saw Live on National TV with the 2022 National Conventions of both 2nd Respondent and the main opposition PDP, both of which started very late in the day and went through the entire night with all Delegates freely exercising their franchise and the election concluding only on the following morning, (a fact of common knowledge that we can take judicial notice of under Section 124(1) and (2) of the Evidence Act 2011), can anyone seriously say that votes fairly and freely cast by delegates in that election should be nullified simply because Article 26 of 2nd respondent was not followed to the letter? Certainly not in my opinion! Elections all over the world are conducted to choose representatives of the people and once that is achieved in a free and transparent manner, the Court ought not to entertain trifling arguments which do not go to the fairness of the election to upturn it. That, I must say, is where the difference lies between the mockery of an election in the case of Emmanuel Andy Nnamdi Uba v. Chief George Moghalu & 2 Ors (2022) LPELR-57876 (SC) heavily relied on by appellant and this case where appellant also claimed elections were held and he and his agent also witnessed it. In Nnamdi Uba supra, Okoro, J.S.C., in his concurring judgment had this to say about the so-called primary election, as also reproduced by Dr. Ikpeazu in appellant’s Brief of Argument:
“The primary Election Committee, without any authorization, adjusted the time for the accreditation of voters from the 8.00am to 5.45pm and proceeded to conduct the election in the dead of the night after all the aspirants, voters and INEC Officials had retired to their various homes except the appellant.”
With His Lordship adding that:
“It is glaring that the appellant together with members of the Committee deliberately delayed conducting the exercise as prescribed by the guidelines so as to find opportunity to concoct bogus votes to the advantage of the appellant. This Court will not give credibility to such act….”
Those are the very ugly facts of that case that formed the basis of the decision by the trial Court, this Court and of the Apex Court that, that charade of an election was null and void. Such is not the case here where Respondent’s contention that other party primary elections were held simultaneously with the Governorship primary in issue hence even though it started on 26th May 2022, it over-flowed into the next day, being 27th May 2022 and was concluded at 9.00 am of that day was not disputed by appellant. It is certainly not my understanding of Article 26 of the Guidelines of 2nd Respondent that its primary election must in all cases be stopped at 2.00 pm and result declared even if only one out of several eligible voters already accredited to vote or still waiting in the queue to be accredited has voted at that point.

4. Did 2nd respondent breach Section 82(1) of the Electoral Act 2022 in the notice of its primary election it gave to 3rd Respondent (INEC)?
Here, the trial judge made the necessary calculations and held that 2nd respondent met the 21 days time stipulated by Section 82(1) of the Electoral Act 2022 for notice of primary election to be given to INEC; that the notice of the rescheduling from 25th May to 26th May 2022 cannot be counted as a new notice that needs 21 day notice so 2nd respondent was in order. That argument is impregnable. The 21 days’ notice stipulation is to afford INEC sufficient time to prepare for its monitoring duty. INEC has not complained that 2nd respondent gave it insufficient notice of its said primary election. On the contrary, it attended and monitored the said election and even issued a Report tendered by appellant himself as Exhibit FAA36. Appellant, it is my opinion, is simply quibbling with this complaint.

5. Finally, the complaint of appellant that the said Jigawa State Primary Election of 2nd Respondent was conducted without accreditation of Delegates.
To make out this allegation appellant would surely need to tender 2nd respondent’s register for the election to confirm that delegates’ names were not ticked. That has to be so since the said allegation was denied by respondents. Appellant who bore the onus of proof of that assertion never tendered 2nd Respondent’s Delegates Register so his allegation remains unproved.

What all the foregoing amounts to, is that appellant truly failed to prove the case he made in his originating summons so the trial judge decision to that effect cannot be faulted. This issue is therefore resolved against appellant and in favour of Respondents.

In summary, this appeal fails and is hereby dismissed while the order of the lower Court dismissing appellant’s originating summons for lack of proof is affirmed.

Parties shall bear their costs, appellant having won on issue 1, even as that victory has eventually turned out hollow with his loss in issue 2.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading, in draft, the leading judgment, just delivered by my learned brother, B.M. Ugo JCA, and I agree with his brilliant reasoning and conclusion that the Appeal is bereft of merit, except in respect of the preliminary objection, which the learned trial Judge upheld, wrongly.

I think the impunity of leadership of Political parties, whereof they go against their party constitution, regulations and electoral laws, and impose candidates to stand election or manipulate the electoral processes, to favour their surrogates, corruptly, should be checked and discouraged by the Court, and I, think that is the mischief which Section 84(14) of the Electoral Act, 2022, sought to curb, among other vices. See also the illuminating decision of my Lord, Agim JCA, (as he then was) in the case of Chukwu Vs PDP & Ors (2016) LPELR-40962 CA, which interpreted Section 87(9) of the Electoral Act, (now 84(14) of 2022 Act) and said:
“Therefore, an aspirant who participated in the gubernatorial primary election can complain that the nomination or selection of the party’s candidate for the election has not complied with the Electoral Act, 2010 and the 1st respondent’s Electoral Guidelines, because the Ad- Hoc Delegates that voted in the Special State Congress were not elected as such in accordance with Articles 2 and 3 of the 2019 Electoral Guidelines of the 1st respondent. It is a complaint that clearly comes within the purview of the complaint which Section 87(9) of the Electoral Act gives an aspirant who participated in the primary election the right to make. The danger of holding otherwise is too obvious. If the complaint that the persons who voted as Ward Ad-Hoc Delegates in the primary election had no right to so vote because they were not duly elected as such ward Ad-Hoc Delegates is not within the scope of the complain Section 87(9) of the Electoral Act 2010 gives an aspirant who participated in a primary election to make, then the Court would lack the Jurisdiction to determine if the persons who voted as ward Ad-Hoc delegates during the nomination of an aspirant as the party’s candidate for an election were duly elected as such ward ad hoc delegates in accordance with Articles 2 and 3 of the 1st respondents Electoral Guideline 2014. In that event the political party would become the sole determinant of who should be a ward ad hoc delegate at the special State congress and any list of such ad hoc delegates approved by it would be beyond judicial scrutiny. This can lead to a situation where persons who are not duly elected ward ad hoc delegate can be used to vote during primary elections with impunity, with the result that primary elections outcomes would not represent the wishes of the generality of members of the political party. In a country like ours, where politicians have a proclivity of habitual disobedience of their own political party Constitution and Electoral Guidelines as well as our national laws, it would be dangerous to our general well being and the development of genuine democracy to preclude from the jurisdiction of our Courts, the question. of whether a party’s candidate for an election was elected by legal delegates in the primary election.”

I too allow the Issue 1 and set aside the Preliminary Objection. I also dismiss the Appeal challenging the merit of the decision on the merit of the case. I abide by the consequential orders in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the leading Judgment of my learned brother, BOLOUKUROMO, MOSES UGO, JCA just delivered. I am in total agreement with the reasoning and the conclusion reached. For the reasons adumbrated in the judgment which I hereby adopt as mine, I hold that the appeal lacks merit and it is hereby dismissed. I abide by the consequential orders therein.

Appearances:

Dr. Onyechi Ikpeazu, O.O.N., S.A.N., Professor Nasiru Aliyu Adamu, S.A.N., Abdul Mohammed, S.A.N., with them, A. L. Yusuf, Esq., Huwaila Mohammad Ibrahim, Esq., Sunusi Musa, Esq., Obiabo Francis Amedu, Esq., Abusufyanu Abubakar, Esq. and P. A. Adewuyi, Esq. For Appellant(s)

Professor Hassan M. Liman, S.A.N., with him, Umar Usman Kolos, Esq. – for 1st Respondent
Y.A.H. Ruba, S.A.N., with him, K.S. Adamu, Esq. and T. R. Agbanyi, Esq. – for 2nd Respondent
Ibrahim K. Bawa S.A.N., with him, Mukaila Yahaya Mavo, Esq. – for 3rd Respondent For Respondent(s)

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