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KAMBAZA & ORS v. APC & ORS (2020)

KAMBAZA & ORS v. APC & ORS

(2020)LCN/14276(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, June 29, 2020

CA/S/54/2020

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

  1. MUSA ABUBAKAR KAMBAZA 2. FARUKU SAHABI TARI 3. SARKI MACCIDO GORA 4. UMAR ALTINE 5. ALTINE ABUBAKAR 6. ABDULNASIR YAHAYA 7. ABUBAKAR MUHAMMAD GWANDU 8. SANI GOJE BUNDUSULE 9. KABIRU UMAR 10. SADIQ LABOO MUH’D 11. USMAN UMAR 12. SAFIYANU MUHAMMED 13. ABUBAKAR ZAKI AMORE 14. MALAMI MOHAMMED GADAJE 15. USMAN ALIYU 16. SIRAJO ALIYU MALISA 17. NASIR ABUBAKAR APPELANT(S)

And

  1. ALL PROGRESSIVES CONGRESS 2. 3. ENGR. BELLO KURYA 4. ATTORNEY GENERAL OF KEBBI STATE 5. FARUKU MALAMI 6. HALIRU USMAN 7. HALIMA MUHAMMAD 8. MALAMI UMAR 9. HASHIMU ABUBAKAR 10. KABIRU MUHAMMAD 11. ABASS ABDULLAHI 12. TUKUR USMAN 13. BANDI UMAR 14. BASHAR A ZAKI 15. KEBBI STATE INDEPENDENT ELECTORAL COMMISSION RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS ONLY A MEMBER OF A POLITICAL PARTY THAT PARTICIPATED IN THE PARTY’S PRIMARIES THAT CAN QUESTION THE OUTCOME OF THE SAID PRIMARIES

By the provisions of Section 87(9) of the Electoral Act, 2010, (as amended), it is only a member of a political party that participated in the party’s primaries that can question the outcome of the said primaries. The apex Court was as clear as daylight on the issue in the case of EYIBOH vs. ABIA & ORS (2012) LPELR-20607(SC), when the Court properly identified who can institute an action in Court to complain about the conduct of a party’s primaries to exclude a person who was not a contestant/aspirant in the said primaries. At Page 50, Paras B-C, the Court per RHODES-VIVOUR, JSC, had this to say on the subject;
“A member of a political party who did not take part in the party primaries cannot complain about the conduct of the primaries. He has no locus standi to complain. Only candidates that contested the party primaries can complain about the conduct of the primaries. Section 87(9) of the Electoral Act. PDP v T. Sylva & Ors. (supra).” PER OHO, J.C.A.

WHETHER OR NOT A MEMBER OF A PARTY HAS NO LEGAL RIGHT TO BE NOMINATED BY HIS PARTY

See the case of PEOPLE’S DEMOCRATIC PARTY & ANOR vs. TIMIPRE SYLVA & ORS. (2012) LPELR-7814 (SC), where it was held that a member of a party has no legal right to be nominated by his party. At page 35, the Apex Court per RHODES-VIVOUR, JSC has this to say on the subject;
‘The right to nominate or sponsor a candidate by a political party is a domestic right of the party. A political matter within the sole discretion of the party. A member of the party has no legal right to be nominated/sponsored by his party. A Court thus has no jurisdiction to determine who a political party should sponsor. Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party, and this is so because the sponsorship or nomination of a candidate is a pre-primary election affair of the party.”
Learned Appellant’s Counsel, in his brief of argument and as well as in his Reply Brief, made a heavy whether insisting that the old case of HON. P. C. ONUOHA vs. CHIEF R. B. K. OKAFOR & ORS (1983)10 SC. 119, which had remained a locus classicus had been set aside by the more recent case of MAIHAJA vs. GAIDAM (2018) 4 NWLR (PT. 1610) 454 AT 459. This Court has taken its time to read and to digest the erudite decision of the apex Court in the case of MAIHAJA vs. GAIDAM (Supra) and does not share the same view with learned Counsel on the issue. The case, rather than set aside the locus classicus aforesaid, only dealt with the vexed question of the locus standi of a person who seeks to contest the results of a primary election in a Court of law amongst other things and the jurisdiction of Court to entertain his complaints when the person, as in the instant case, did not participate in the primary elections of the party.PER OHO, J.C.A.

WHETHER OR NOT AN APPELLANT MUST SUCCEED ON THE  STRENGTH OF HIS CASE IN A CLAIM FOR DECLARATORY RELIEFS

The settled position of the law is that the Appellants will have to succeed on the strength of their case; the weakness of the defense notwithstanding. See ANYANRU vs. MANDILAS LTD (2007) 4 SC (PT. 111) 58; DUMEZ NIG. LTD vs. NWAKHOBA (2008) 18 NWLR (PT. 119) 361. In MOHAMMED vs. WAMMAKO (2017) LPELR-42667 (SC), the apex Court, per KEKERE-EKUN JSC, had this to say on the subject;
“The law is settled that in a claim for declaratory reliefs (as in the instant case), the Plaintiff must prove his entitlement to such declaratory reliefs by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of defence (if any). Indeed a declaratory relief will not be granted on the basis of admission by the adverse party. See Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Wallersteiner v. Moir (1974) 3 ALL ER 217 at 251; Bello v. Eweka (1981) 1 SC (Reprint) 63; Emenike v. PDP (2012) LPELR-7802 (SC), Matanmi v. Dada LPELR-19929 (SC).”PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Kebbi State, sitting at Birnin Kebbi Judicial Division and delivered on the 20th day of April, 2020 Coram: NUSIRAT T. I. UMAR, J. pursuant to the 1st Respondent’s Nominations exercises/Primaries leading to the nomination for the Chairmanship/Councillorship aspirants of Gwandu Local Government Council of Kebbi State. The 1st Respondent preparatory to the Local Government Election in Kebbi State conducted a series of screening exercises for members of its party preparatory for the conduct of its Primary Election for the nomination of its candidate in all the Local Government Councils of Kebbi State on the 12th October, 2019.

​The Appellant and the 3rd Respondent, along with others, namely: the 1st, 2nd and 3rd Claimants and the 4th and 7th to 16th Respondents purchased nomination Forms, which will qualify them to participate in the screening exercise of the 1st Respondent slated for the 8th day of October, 2019. At the end of the exercise, the Appellant, who was 1st Claimant along with the 2nd and 3rd Appellants failed the

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screening and were accordingly weeded out of the race for participation in the 1st Respondent’s Primary Election. The 3rd Respondent, having been the sole winner of the screening for Chairmanship Candidate along with the 4th and 7th to 16th Respondents for the position of Councillorship for the Gwandu Local Council, had their names forwarded to the 15th Respondent who is the State Commission responsible for the conduct of the Local Government Elections in the State as having been returned unopposed.

Dissatisfied with the result of the screening exercise in which the 1st Appellant and the 2nd, 3rd, 4th and 7th to 16th Appellants were disqualified and prevented from participating in the primaries, the Appellants as Claimants along with the others approached the Court below with an undated Originating Summons but which was filed on the 23rd day of October, 2019 for the determination of the following questions;
(i) WHETHER the submission of the name of the 4th Defendant (Engr. Bello Kurya) to the 2nd and 3rd Defendants herein as the duly nominated candidate of the 1st Defendant for the elective post of Chairmanship of the 5th Defendant without the

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conduct of the primary Elections is illegal, Ultra vires, null and void and flagrant breach of the express provisions of Section 87(1) of the Electoral Act, 2010 (As Amended 2015) ARTICLE 13 PARAGRAPH 13.7 (V), 13.8 (viii) and ARTICLE 20 of the Constitution of All Progressive Congress (APC)?
(ii) WHETHER the failure and refusal of the 1st Defendant to conduct a primary Election for the elective post of Councillorship/Chairmanship of Gwandu Local Government (5th Defendant) in furtherance of the Local Government Polls scheduled for the 26th Day of October, 2019 is illegal, Ultra Vires, null and void as same contravenes the express provisions of Section 87 (5) of the Electoral Act, 2010 (As Amended 2015), Article 20 of the Constitution of All Progressives Congress (APC)” (See Page 5 of the Record of Appeal).

Upon the determination of the foregoing questions, the Appellants as Claimants, equally claimed the following reliefs;
1. A DECLARATION that the submission of the name of ENGR. Bello Kurya (the 4th Defendant) by the 1st Defendant to the 2nd and 3rd Defendants as the Chairmanship Candidate of the 5th Defendant (Gwandu Local Government) in

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the Local Government polls scheduled by the 2nd and 3rd Defendants for the 26th Day of October, 2019 without the conduct of a primary Election is illegal, Ultra Vires, null and void as same negates the intent and purpose of the provisions of Section 87(1) of the Electoral Act, 2010 (As Amended 2015), ARTICLE 3 PARAGRAPH 13.7 (V), 13.8 (Viii) and ARTICLE 20 OF THE Constitution of All Progressives Congress (APC).
2. A DECLARATION that the failure and refusal of the 1st Defendant to conduct a Primary Election for the elective post of the Councillorship and Chairmanship of Gwandu Local Government (5th Defendant) in furtherance of the Local Government Polls scheduled for the 26th Day of October, 2019 is illegal, Ultra Vires, null and void as same contravenes the express provision of ARTICLE 20 of the Constitution of All Progressives Congress (APC).
3. AN ORDER of this Honourable Court restraining the 1st, 2nd, 3rd, 5th and 6th Defendants herein, their agents, servants, privies, assigns and or by whatsoever name called for recognizing or issuing a certificate of Return to the 4th Defendant (Engr. Bello Kurya) as the duly nominated candidate of the 1st

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Defendant for the elective post of Chairmanship in furtherance of the Local Government Polls Scheduled for the 26th Day of October, 2019.
4. AN ORDER of this Honourable Court restraining the 2nd and 3rd Defendants herein from organizing, conducting or issuing any official circular or time table in respect of the conduct of any electoral process into the Councillorship/Chairmanship elective Positions on the platform of the 1st Defendant in respect of the Local Government Polls slated for the 26th Day of October, 2019 pending the hearing and final determination of this suit.
5. AN ORDER of this Honourable Court restraining the 2nd and 3rd Defendants herein from organizing and conducting any election on the 26th Day of October, 2019 or on any other dates in respect of the Councillorship/Chairmanship elective positions in the 5th Defendant pending the hearing and final determination of the substantive suit.
6. AN ORDER OF MANDATORY INJUNCTION nullifying the nomination and recognition of the 4th Defendant as the Chairmanship Candidate of the 1st Defendant in respect of the Local Government Polls scheduled to be conducted by the 2nd and 3rd

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Defendants on the 26th Day of October, 2019 or on any other dates pending the hearing and final determination of the substantive suit.
7. AN ORDER OF MANDATORY INJUNCTION nullifying the nomination and recognition of 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th and 16th Defendant as the Councillorship Candidates of the 1st Defendant in respect of the various wards in the 5th Defendant entity in furtherance of the local Government polls scheduled to be conducted by the 2nd and 3rd Defendants on the 26th Day of October, 2019 or any other dates pending the hearing and final determination of the substantive suit.
8. AN ORDER of this Honourable Court restraining the 2nd and 3rd Defendants, their agents, assigns, privies, servants as and by whatsoever name called from conducting, organizing the Local Government Polls slated for the 26th Day of October, 2019 or at any other dates into various Councillorship Ward in the 5th Defendant entity in respect of the 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th and 16th Defendants pending the hearing and determination of the substantive suit.
9. AN ORDER OF MANDATORY INJUNCTION compelling the 1st,

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2nd, 3rd, 4th, 5th, 6th Defendants to reverse the submission of the names of the 7th to 16th Defendants as Councillorship Aspirants representing various Ward to wit; Gwandu S/Fawa Ward, Gwandu Marafa Ward, Masama Ward, Malisa Ward, Maruda Ward, Dodoru Ward, Gulmare Ward, Kambaza Ward, Cheberu Ward, Dalijan Ward in respect of the Local Government Polls slated for the 26th Day of October 2019 at any other dates pending the hearing and determination of this suit.
10. AN ORDER of this Honourable Court restraining the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants, their agents, assigns, servants, privies and by whatsoever name called from recognizing the 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th Defendants as Councillorship Aspirants in various Wards of the 5th Defendants pending the hearing and determination of this suit.
11. AN ORDER of this Honourable Court restraining the 2nd and 3rd Defendants, their agents, assigns, privies, servants and by whatsoever name called from issuing Certificate of Return to the 7th, 8th, 9th, 11th, 12th, 13th, 14th, 15th and 16th Defendants as Councillorship Aspirants in respect of the Local Government Polls

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slated for the 26th Day of October 2019 or at any other dates pending the hearing and determination of this suit.
12. AN ORDER of this Honourable Court compelling the 1st Defendant/Respondent to conduct Primary Elections in respect of elective Political Offices of Chairmanship and Councillorship positions in the 5th Defendants/Respondents entity in furtherance of the Local Government Elections slated for the year 2019 or any other dates as may be fixed by the 2nd and 3rd Defendants/Respondents.
13. AN ORDER of this Honourable Court compelling the 2nd and 3rd Defendants/Respondents herein to exercise its statutory and supervisory Constitutional role over the 1st Defendant/Respondent to conduct Primary Elections in respect of elective Political Offices of Chairmanship and Councillorship positions in the 5th Defendant/Respondent entity in furtherance of the Local Government Elections scheduled to hold in the year 2019 or at any other dates as may be fixed by the 2nd and 3rd Defendants/Respondents.
14. And for such order or further Orders as this Honourable Court may deem fit and proper to make in the circumstance of hearing and determining this

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suit…”(See Pages 2 to 4 of the Record of Appeal).

The Originating Summons had in its support an Affidavit of 93 Paragraphs to which a number of documentary Exhibits were attached. These were marked as Exhibits 1 to 8. See Pages 41 to 131 of the Record of Appeal. In reaction to the processes filed by the Appellants as Claimants, the Respondents filed their respective Counter Affidavits. The 1st, 3rd, 5th to 14th Respondents filed their joint processes in opposition to the suit and these processes are contained at pages 560-575 of the record of Appeal. The 4th and 15th Respondents also filed their joint Counter Affidavit and written address in opposition of the suit. See pages 319-559 of the record of appeal. The Appellants equally responded to the process filed by the 4th and 15th Respondents herein at pages 576-590 of the record. On the 11th day of February, 2020 the matter was heard by the Court below and in a well-considered judgment delivered on the 20th of April, 2020 at pages 601-614 of the record of appeal, the learned trial Court upheld the contention of the 4th and 15th Respondents that it lacked the requisite vires to entertain the

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complaint of the Appellants, being an intra-party dispute and dismissed the claim of the Appellants.

Dissatisfied with the judgment of the Court below, the Appellants as Claimants have come before this Court vide a Notice of Appeal filed on the 30th day of April, 2020. The Notice of Appeal is contained at pages 615-620 of the Record of Appeal. There are four grounds of Appeal filed.

ISSUES FOR DETERMINATION:
There were three (3) issues nominated by the Appellant for the determination of this Appeal thus;
1. WHETHER the Judgment delivered by His Lordship, Honourable Justice NUSIRAT.I. UMAR of the High Court of Justice of Kebbi State on the 20th Day of April 2020 in SUIT NO:KB/HC/55/2019 is not against the weight of documentary evidence presented by the Appellants? (Ground one).
2. WHETHER the learned trial Judge rightly and properly held that the Appellants did not establish their claims against the Respondents? (Ground two).
3. WHETHER the learned trial Judge erred in law by not ascribing the express and unambiguous provisions of Section 87(1) of the Electoral Act, 2010 (As Amended 2015), Article 13 PARAGRAPH 13.7(viii), Article

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20 of the Constitution of the All Progressives Congress (APC) their true and natural meaning? (Ground three).

On the part of the 1st, 3rd, 5th to 14th Respondents, two (2) issues were nominated for the determination of this Appeal thus;
1. Whether the Appellants are entitled to the relief sought in their Originating Summons?
2. Whether the Appellants’ suit filed before the trial Court is competent?

The 4th and 15th Respondents on their part nominated a sole issue thus;
“Whether having regards to the facts and circumstances of this Appeal, the judgment of the trial Court delivered on the 20th of April, 2020 is not correct?”

In addition, the 1st, 3rd, 5th to 14th Respondents filed a Notice of Preliminary Objection to the hearing of this Appeal. The 1st, 3rd, 5th to 14th Respondent’s Notice of Preliminary Objection was argued from pages 6-10 of their joint Respondents’ Brief of Argument filed on the 19-6-2020 and contained two (2) Grounds, which learned Counsel for the 1st, 3rd, 5th to 14th christened as: “issues” instead of grounds. This Court is however, not surprised that the grounds

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are so christened by Counsel as they are indeed a replication of the two (2) issues, which Counsel had in fact earlier on nominated for the determination of this Appeal and to make matters rather easy for this Court, it is also to be observed that the arguments proffered by Counsel at pages 6-10 of the Joint 1st, 3rd, 5th to 14th Respondents’ brief of argument in arguing the Notice of Preliminary Objection, are indeed another replication, but this time, by way of arguing the issues nominated for determination of the Appeal itself.

In essence, therefore, in the eyes of this Court there is, therefore no such thing as a Preliminary Objection. It will be the least plausible endeavour on the part of Counsel for the 1st, 3rd, 5th to 14th Respondents to raise both as issues of preliminary objection, only to replicate same exact arguments as his arguments in support of the main issues for determination of the appeal proper in the same brief of argument. The so-called preliminary objection is for this reason struck out.

​This, thus accomplished and following a careful and calm perusal of the issues nominated by learned Counsel for the parties, it is

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rather glaring that the common denominator of the issues nominated across board by Counsel to the parties is the vexed question of the validity or otherwise of the lower Court’s judgment, albeit, approached from various axes, some from the down-right framework of verbosity as exemplified in the case of the Appellants and others, especially in the case of the 1st, 3rd, 5th to 14th Respondents, whose position is a studied case in taciturnity.

This being the case here, the Court shall therefore decide this Appeal on the basis of the issues nominated by the Appellant despite the inelegant drafting of the issues raised therein. The Appellants’ brief of argument dated and filed on the 11-6-2020 was settled by A. M. DOLE ESQ., while the joint brief of argument of the 1st, 3rd, 5th to 14th Respondents dated the 18-6-2020 and filed on the 19-6-2020 was settled by SANUSI SAMAILA ESQ.,. As for the 14th and 15th Respondents, their joint Respondents’ brief of argument was also dated and filed on the 19-6-2020 and settled by LAGALO DAN LAGALO ESQ.

​At the hearing of this Appeal on the 24-6-2020, learned Counsel for the parties adopted their

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respective briefs of argument with each urging upon the Court to resolve the Appeal in favour of their sides. This, however, was after learned Counsel for the Appellants had announced the Appellants’ withdrawal against the named 2nd Respondent, i.e., the Independent National Electoral Commission (INEC) and its name was struck out in the absence of any objections.

SUBMISSIONS OF COUNSEL;
APPELLANTS;
ISSUE ONE:
WHETHER the Judgment delivered by His Lordship, Honourable Justice NUSIRAT, I. UMAR of the High Court of Justice of Kebbi State on the 20th Day of April, 2020 in SUIT NO: KB/HC/55/2019 is not against the weight of documentary evidence presented by the Appellants? (Ground 1)
In arguing this issue, learned Appellants’ Counsel contended that the learned trial judge of the Court below did not interpret the provisions Section 87(1) of the Electoral Act, 2010 as it ought to have done and that if the Court had done so, it would have reached a different conclusion. According to Counsel, the learned trial judge therefore did not deal with the crux of the Appellants suit dealing with the failure of the 1st Respondent to

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conduct Primary Elections in respect to the elective Political offices of Chairmanship and Councillorship in relation to Gwandu Local Government Area of Kebbi State.

Learned Counsel also picked holes with the learned trial judges’ Judgment on the Court’s reliance on the locus classicus of ONUOHA vs. OKAFOR whose principle is to the effect that “it is the duty of the political parties to sponsor candidates at the election and that the Court has no jurisdiction to nominate a candidate for a political party.” See also the case ofDALHATU vs. TURAKI where the Supreme Court held that nomination or sponsorship of a candidate for an election is the domestic affairs to the party guided by its Constitution. The argument of Counsel is that this decision of the Lower Court does not represent the recent decisions of the apex Court on the issue.

According to Counsel the decision of ONUOHA vs. OKAFOR (Supra) has since been qualified by recent judicial pronouncements. Counsel further argued that where a political party fails to comply with the provisions of the Electoral Act or party Guidelines in respect to the nomination and sponsorship

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of a candidate(s), then, a Court of law has the jurisdiction to entertain and determine complaints from aggrieved registered political parties in respect to any infraction of the provisions in the Electoral Act or party Guidelines in respect to the nomination and sponsorship of a candidate(s). Counsel cited the cases of LAU vs. PEOPLES DEMOCRATIC PARTY (2017) 52 WRN at 7 to 8; NDUUL vs. WAYO (2018) 16 NWLR (PT. 1646) Pg. 548 at 559.

It is further contended that once there is a breach of the Electoral Act and/or Party Constitution in the process of nomination and sponsorship of a candidate(s) at elections, a Court of Law can entertain a suit challenging such breach. Counsel also argued that the 1st Respondent herein, having failed to comply with the extant statutory provisions in having the name of the 3rd Respondent submitted to the 2nd and 15th Respondents as the bonafide candidate for the Chairmanship position for Gwandu Local Government Area of Kebbi State as well as the names of the 5th to 14th Respondents as the bonafide Councillorship Candidates for Gwandu Local Government Area of Kebbi State in respect to the 2019 Local Government Elections slated

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for the 26th Day of October 2019, the Local Government Elections held on the 26th Day of October 2019 as it relates to the 3rd and 5th to 14th Respondents is null and void.

According to learned Counsel, this argument is premised on the fact that you cannot put something on nothing and expect it to stand, as it will fall and collapse. He cited the case of MCFOY vs. UAC LTD (1962) AC 32. In his concluding arguments on this issue, Counsel argued that the failure by the 1st Respondent to conduct Primary Elections as required by extent provisions of statutory enactments to wit: Section 87(1) of Electoral Act, 2010 (as amended)and the Party Guidelines and Constitutions rendered the entire exercise at nominations and fielding of candidates for the Chairmanship and Councillorship Elections into the Gwandu Local Council Elections null and void. Counsel urged Court to so hold.

ISSUE TWO:
WHETHER the learned trial Judge rightly and properly held that the Appellants did not establish their claims against the Respondents? (Ground 2).
The argument of learned Appellant’s Counsel in this issue, is that the learned trial Court erred in law when it

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held that the Appellants failed to adduce cogent and credible evidence in respect to the Reliefs they sought at the trial. As far as Counsel was concerned, here was a matter in which the Respondents did not controvert or deny the fact that Primary Elections into the elective Political offices of Chairmanship and Councillorships in Gwandu Local Government Area was not conducted by the 1st Respondent in furtherance to the 2019 Local Government Elections officially scheduled to hold on the 26th Day of October 2019.

To establish the fact that the Respondents did not really join issues with the Appellant at the Court below, Counsel referred to the depositions of BAGUDU ANGO, the Administrative Secretary of the 1st Respondent who deposed to a Counter affidavit at the Court below on behalf “1st, 3rd AND 5TH to 14th RESPONDENTS’ COUNTER AFFIDAVIT TO THE ORIGINATING SUMMONS”. See Paragraph 12 and 13 of the said counter affidavit thus:
“That considering the facts that the 4th Defendant was the only aspirant for Chairmanship that passed the screening exercise and also the fact that the 7th to 16th defendants being the sole aspirants

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(Councillorship) from their respective wards, the 1st defendant deemed it not necessary to conduct primary election rather an affirmation of the aspirants by vote of “Yes” or No” which was done for the 4th defendant as well as 7th to 16th defendant”.“That in view of the foregoing paragraph, the 1st defendant submitted the names of 4th defendant for Chairmanship and 7th to 16th defendants for Councillorship to the 3rd defendant as its candidates for Chairman and Councilors for Gwandu Local Government for the Kebbi State Local Government Election 2019.” (See Page 268 of the Record of Appeal).

In the light of the foregoing, Counsel urged this Court to resolve issue two herein in favour of the Appellants.

ISSUE THREE:
WHETHER the learned trial Judge erred in law by not ascribing the express and unambiguous provisions of Section 87(1) of the Electoral Act, 2010 (As Amended 2015), Article 13 PARAGRAPH 13.7(viii), Article 20 of the Constitution of the All Progressives Congress (APC) their true and natural meaning? (Ground three)
The argument of learned Counsel is that the statutory provision of

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Section 87(1) of  the Electoral Act, 2010 (As Amended 2015), Article 13 PARAGRAPH 13.7 (v), 13.8 (viii); Article 20 of the Constitution of the All Progressives Congress (APC), Section 87(5) of the Electoral Act, 2010 (As Amended 2015)were presented before the Lower Court for interpretation and determination. The afore-stated sections and provisions are stated thus:
“A political party seeking to nominate candidates for Elections under this Act shall hold primaries for aspirants to all elective positions” “The State Executive Committee shall: (v) Organize Party Primary Elections for the nomination of candidates as approved by the party”.
“The state working committee shall be responsible for the administration of the party and putting into effect the decisions of the State Executive Committee. To that end, the State working Committee shall carry out the day to day running of the affairs of the Party. It shall: (viii) Organize Primary Elections for the nomination of Local Government Area Chairmanship Candidate and Vice Chairmanship candidate and councilors for Election into the Local Government Area Council”.
“All Party

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posts prescribed or implied by this Constitution shall be filled by democratically conducted elections at the respective National convention or congress subject where possible, to consensus.
Provided that where a candidate has emerged by consensus for an elective position, a vote of “Yes” or “No” should be called for, to ensure that it was not an imposition which could breed discontent and crisis”.
“In the case of a councillorship candidate, the procedure for the nomination of the candidate with the highest number of votes shall be submitted to the commission as the candidate of the party”.

Against the backdrop of the foregoing, Counsel contended that where the word: “Shall” appears in any statutory and legislative enactment, it connotes mandatories. See CORPORATE IDEAL INSURANCE LTD vs. AJAOKUTA STEEL COMPANY LTD AND ORS (2014) 7 NWLR (PT. 1045)165 where it was held that where the provision of a statute is garbed with the word: “shall”, that it connotes that it is imperative that the provision be obeyed. According to Counsel, this is so because the word “shall” is a

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word of command that imposes a duty and makes the provision mandatory…”

The submission of Counsel therefore is that it is the mandatory statutory obligations imposed on the 1st Respondent to conduct Primary Elections prior to the conduct of General Elections across the 36 States in the Federation and that Local Government Elections are not excluded from this statutory obligation. Counsel further submitted that where the language used in the provisions of a statute and or the Constitution is plain and unambiguous, effect must of necessity be giving to that plain ordinary meaning. See ALL PROGRESSIVES CONGRESS vs. KARFI (2018) 6 NWLR (PT. 1616) 479 AT 491; TSOKWA vs. IBI (2017) 10 NWLR (PT. 1574) 343 AT 366. Counsel also submitted that it is therefore a mandatory requirement for the 1st Respondent to conduct Primary Elections as prescribed by the Electoral Act, 2010 (as amended 2015) and in the very specific manner prescribed by its Constitution prior to a 26th October 2019 General Elections. He said that failure to conduct Primary Elections, and in the manner prescribed by Party Constitution, renders the 1st Respondent – a Party without valid

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candidates to the General Elections conducted on the 26th Day of October, 2019.

Counsel further submitted that the Election of candidates that were submitted to the 2nd Respondent by 1st Respondent in this regard are without foundation, illegal, null and void and of no legal effect. He contended that the Court below failed to appreciate the statutory provisions stated above, whereas it is the duty of the Lower Court to give interpretative effect to the enumerated sections. Counsel once again cited the case of ALL PROGRESSIVES CONGRESS vs. KARFI (Supra) where he said the Court held thus: on procedure for nomination of candidate for election by political party.
“Section 87(1) of Electoral Act, 2010 (as amended), makes it mandatory for a political party seeking to nominate its candidate for a general election to hold or conduct a primary election for aspirants seeking it sponsorship”.

Counsel finally submitted that had the Court below applied the literal rule of statutory interpretation of statutes to the aforementioned statutory provision, it would have arrived at a just decision, that the conduct of Primary Elections are compulsory.

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Counsel finally urged this Court to resolve issue three in favour of the Appellants.

1st, 3rd AND 5th to 14th RESPONDENTS:
ISSUE ONE:
Whether the Appellants are entitled to the relief sought in their Originating Summons?
In arguing this issue, Counsel submitted that the 15th Respondent that is the Kebbi State Independent Electoral Commission is a body corporate established by the Kebbi State Independent Electoral Commission Law, 2000 and not any other Law or Act charged with the election into Office of the Local Government Chairmen and Councilors in Kebbi State of Nigeria.

According to Learned Counsel by virtue of Section 10 of the Kebbi State Independent Electoral Commission Law, 2000 the powers and functions of the 15th Respondent are clearly stated thus;
“a. To organize, conduct and supervise all elections or bye-elections into the elective offices of Chairman and vice Chairman of local Government Councils, Councillorship of the Local Government Councils in the State and all matters pertaining to those elections as may be provided in this law or any enactment or law.”

​The argument of learned Counsel is that

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from the aforementioned provision, it is clearly stated that Kebbi State Independent Electoral Commission Law, 2000 is the law to govern all matters relating to elections into the office of Chairman and Vice Chairman of Local Government Councils, Councillorship of the Local Government Councils in Kebbi State and not any other law.

Learned Counsel disclosed to this Court that what the Appellants took before the trial Court was the interpretation of the provisions of the Electoral Act, 2010 as amended, which is an enactment of the National Assembly and established a body called: the Independent National Electoral Commission. As far as Counsel is concerned the provision of Section 87(1) of the Electoral Act, 2010 is not applicable to elections into the office of Chairman and Vice Chairman of Local Government Councils/Councillorship elections in Kebbi State contrary to the arguments of the Appellants.

​Counsel therefore submitted that the Appellants in approaching the Court below for the interpretation of a law, which is not applicable to an election conducted by the Kebbi State Independent Electoral Commission, whose activities are regulated by the

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Kebbi State Independent Electoral Law, 2000 is clearly an exercise in futility and urged this Court to so hold. Counsel also submitted that even if the Court below had interpreted the said provision of the Electoral Act, 2010 as amended and as requested by the Appellants, that the result would have still been the same thing as the Court below could not have granted the reliefs sought by the Appellants as Claimants.

​As it relates to the provisions of Articles 13.7(v), 13.8(viii) and 20 of the 1st Respondent’s Constitution, learned Counsel argued that the said provisions had been complied with by the 1st Respondent for the conduct of primaries into the Office of Chairman and Councilors into the Gwandu Local Government Council considering the averments contained in paragraphs 12 of the 1st, 3rd and 5th to 14th Respondents’ Counter Affidavit contained at page 267 of the record of Appeal. The further submission of Counsel on this issue is that quite contrary to the submissions of Appellants’ Counsel, that the 1st, 3rd and 5th to 14th Respondents admitted the facts that no primary election was conducted in relation to the offices of Chairman

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and Councilors into the Gwandu Local Government Council; that what actually transpired is as contained in paragraph 12 of the 1st, 3rd and 5th to 14th Respondents’ Counter Affidavit contained at pages 267 of the record of Appeal.

In view of the foregoing, Counsel submitted that Articles 13.7(v) and 13.8(viii) and 20 of the 1st Respondent’s Constitution were complied with by the 1st Respondent for the conduct of primary elections into the Offices of Chairman and Councilors prior to the Local Government Elections in Gwandu Local Government Council of Kebbi State of Nigeria. Counsel urged this Court to so hold and to dismiss the Appeal for lacking in merit.

ISSUE TWO;
Whether the Appellants’ Suit as it filed, is competent?
The submission of learned Counsel for 1st, 3rd and 5th to 14th Respondents in arguing this Appeal is that the provision of Section 29(1) of the Kebbi State Independent Electoral Commission Law, 2000 has divested all Courts of their powers/vires/jurisdiction to inquire into or entertain any cause or matter or question pertaining to or arising from the contest or conduct of an election under the law. For the

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avoidance of doubt, Counsel reproduced the provision thus;
“Subject to the provisions of Sections 23 and 28 of this law, no Court or other Tribunal shall have Jurisdiction or competence to inquire into or entertain any cause, matter, issue or question pertaining to or arising from the contest or conduct of an election under this law.”

Against the backdrop of the foregoing, Counsel contended that the action under appeal to this Court has arisen from the contest and/or conduct of an election into the offices of Chairman and Councilors of Gwandu Local Government Councils of Kebbi State (as stated by the Appellants in their prayer 2 of the suit under Appeal), which is governed by the provisions of the Kebbi State Independent Electoral Commission Law, 2000. In view of the foregoing provision, Counsel further contended that the Court below had no jurisdiction to entertain the matter in the first place and Counsel urged this Court to formally strike out the matter as constituted before the Court below.

​As far as Counsel was concerned it was because the 1st, 2nd and 3rd Appellants were not cleared to contest by the screening Committee

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of the 1st Respondent that they decided to file the action and ditto the failure of the 4th to 17th Appellants to purchase the nomination forms that led to this action. Learned Counsel therefore submitted that a political party has powers to disqualify its members and that it is answerable to no one on the issue including the Courts. In support of this assertion, Counsel cited the case of APC vs. ENGR. SULAIMON ALUYI LERE (2000) 1 NWLR (PT. 1705) 254 where the apex Court had this to say on the issue:
“Candidates are expected to obtain expression of interests and nomination forms, present their certificates for verification and appear before a screening Committee. This is the stage at which the domestic or internal affairs of the political party are not justiciable. The Courts will not dabble into how a member of a party is screened or why a member was not cleared by the party to contest the primaries. Put in another way, before a member of the party is cleared, the party has the power to disqualify their member and is answerable to no one including the Court. A dissatisfied member’s remedy is to leave the party and seek his ambition somewhere else”.

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Arising from the foregoing, learned Counsel urged this Court to resolve this issue in favour of the 1st, 3rd and 5th to 14th Respondents and dismiss this Appeal.

4th and 15th RESPONDENTS:
Whether having regards to the facts and circumstances of this appeal, the Judgment of the Trial Court delivered on the 20th of April, 2020, is not correct?
In arguing the sole issue nominated by the 4th and 15th Respondents, learned Counsel submitted in his opening statements that the learned Trial Court rightly held that the complaint of the Appellants was against a domestic affair or dispute of the 1st Respondent, that is the All Progressives Congress; (APC) to which the Court lacked the jurisdiction to adjudicate or entertain. See the judgment of the Court below at pages 613-614, Lines 27-3 of the Record of Appeal.

​Counsel contended that what determines the jurisdiction of a Court to entertain a case is the originating process and that in the instant appeal, the Affidavits in support of the Amended Originating Summon, which the Court will examine for purposes of determining whether the matter is within its jurisdictional competence or

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not. See CHIEF ADEYEMI & ORS vs. OPEYORI (1976) 9-10 S.C. 31 @ 51; THE ATTORNEY GENERAL ANAMBRA STATE & 13 ORS vs. THE ATTORNEY GENERAL OF THE FEDERATION & 16 ORS (1993) 1 NWLR (PT. 302) 692 @ 742. By virtue of the Affidavits supporting the Amended Originating Summons contained at Pages 232-248 and 576-579 of the Record of Appeal, Counsel drew attention to the fact that what is actually at stake in this appeal is the very narrow issue of nomination of candidates in the Local Government Election held in Gwandu Local Government Council on the 26th of October, 2019.

​Counsel noted that the complaints of the Appellants is built around their grievance of having purchased Expression of Interest Forms; indicating their interest to participate in the Primary Election of the 1st Respondent, and were not cleared to participate in the party Primaries for purposes of selecting and/or nominating candidates for the main election. Counsel submitted that as a result the Appellants were not contestants in the primaries of the 1st Respondent leading to the nomination of the 3rd, 5th to 14th Respondents. He argued in addition that the issues relating to party

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primaries and/or nomination of candidates for an election are purely political questions, which are not justiciable as it is the exclusive duty of a Political Party to nominate Candidates for the Local Government Council Election held in Gwandu Local Government on the 26th of October, 2019, and not otherwise. To buttress his arguments, Counsel cited the cases of DINGYADI & ANOR vs. INEC & ORS (2011) LPELR-950 (SC), 41, PARAS A-D; SHINKAFI & ANOR vs. YARI & ORS (2016) LPELR-26050(SC), 57, PARAS A-D; ONUOHA vs. OKAFOR & ORS (1983) NSCC 494; DALHATU vs. TURAKI (2003) 15 NWLR (PT. 843) 310.

Learned Counsel further contended that the complaint of Appellants based on the facts deposed to in support of their application thereof is outside the jurisdictional scope of the Court below as rightly found by the Trial Court. He said that by their own showing embedded in their depositions, that they stated very eloquently their non-participation in the Party’s Primaries of the 1st Respondent and went on to quote with approval the depositions in the Counter Affidavit of the 3rd, 5th to 14th Respondents to show that the Appellants were not cleared

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to contest primaries. Counsel referred to pages 15-16 of the Appellants’ Brief of Argument, on the issue.

With this at the background, Counsel argued that the “Yes” or “No” affirmation adopted by the 1st Respondent and conceded by the Appellants in the circumstances of this appeal is a form of primaries recognized by Section 87(6) of the Electoral Act, 2010 (as amended) and the Constitution of the 1st Respondent, All Progressives Congress Constitution (October, 2014 as amended).

Counsel, however submitted that the Appellants erroneously at pages 12, 13 and 14 of the Appellants’ Brief of Argument argued that, under Section 87(9) of the Electoral Act, 2010 (as Amended), the Trial Court has the jurisdiction to entertain the suit. Without mincing words, Learned Counsel disagreed and contended that the Electoral Act is very certain on who can seek redress in the Court on disputes arising from party primaries and that by the provisions of Section 87(9) of the Electoral Act, 2010, (as amended), it is only a member of a political party that participated in the party’s primaries that can question the outcome of the said

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primaries. Counsel cited the cases of EYIBOH vs. ABIA & ORS (2012) LPELR-20607(SC); MAIHAJA vs. GAIDAM (2017) LPELR-42474(SC), 37-48, PARAS B-C.

Counsel also contended that the mere fact that the Appellants purchased the 1st Respondent’s Expression of Interest Forms, did not vest them with any rights to institute this action as their inability to participate in the actual primaries of the 1st Respondent remains a handicap and affected the competence of the suit and the jurisdiction of the Trial Court to entertain same in no small measures. Conversely, Counsel further added that the 1st Respondent whose power it is to conduct primaries and nominate Candidates also stated very loudly that the Appellants were not cleared to contest the Primaries. See pages 266-269 and 561-563 of the Record of Appeal.

It was also argued by Counsel that the powers of a political party to screen and clear it members as a condition for participation in its primaries cannot be overemphasized. He cited the case of APC vs. ENGR. SULEIMAN ALUYI PERE (2020) 1 NWLR (PT. 1705) 254 AT 285, PARAS A-D; and the observations of the apex Court per RHODES-VIVOUR, JSC had

34

reiterated the exclusive powers of political parties to screen, clear and/or disqualified their candidates to contest party primaries. Counsel also cited the judgment of this Court in an unreported case of ABDULLAHI G. USMAN vs. ALL PROGRESSIVES CONGRESS & 2 ORS in Suit No: CA/S/8/2020, delivered on the 20th of March, 2020, where it was held in a similar scenario as in the instant appeal that, screening and/or clearance of a candidate is a condition precedent for qualification and participation in political party’s primary election.

Contrary to the contentions in the entire Twenty Two (22) pages Appellants Brief of Argument, learned Counsel submitted that the Appellants were disqualified and/or not cleared to contest the Primaries of the 1st Respondent and thus; were not contestants in the party’s primaries held for purposes of nominating candidates for the main election conducted in Gwandu Local Government on the 26th of October, 2019; and the cases of GBAGBARIGHA vs. TORUEMI (SUPRA); FCDA STAFF MULTIPURPOSE COOPERATIVE SOCIETY AND OTHERS vs. SAMCHI AND ANOR (SUPRA); GARUBA vs. KWARA INVESTMENT CO. LTD (SUPRA);

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STANBIC IBTC BANK PLC vs. LONGTERM GLOBAL CAPITAL LTD AND ORS (SUPRA); ASHEIK vs. MEDIA TRUST NIGERIA LTD AND ORS (SUPRA); LAU vs. PEOPLES DEMOCRATIC PARTY (SUPRA); NDUUL vs. WAYO (SUPRA); MCFOY vs. UAC LTD (SUPRA); OKOH vs. NIGERIAN ARMY (SUPRA); AGBO vs. THE STATE (SUPRA); Sections 87 (1), (5) of the Electoral Act, 2010 (as amended) and Articles 13, paragraphs 13.7 (v), 13. 8 (viii), and Article 20 of the All Progressives Congress Constitution, referred to by the Appellants, are clearly inapplicable to the facts of the instant appeal and thus; not helpful to the case of the Appellants.

Counsel further submitted that the complaint of the Appellants would have been excusable or probably tenable if they had contended that they were cleared to contest the primaries and indeed participated; and were elected, but were not nominated; or duly nominated by the 1st Respondent, but were wrongfully substituted with the 3rd, 5th to 14th Respondents by the 15th Respondent; that it is only then that the Appellants can conveniently activate the provisions of Section 87 (9) of the Electoral Act, 2010. See APC vs. ENGR. SULEIMAN ALUYI LERE (SUPRA) AT 285, PARAS D-E. Counsel added that this is not

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the situation in the instant appeal and the Respondents are fortified by the reasoning of this Court in ABDULLAHI G. USMAN vs. APC & 2 ORS (SUPRA), at pages 38-39, where the law on the subject was succinctly and/or well-articulated.

On the failure of the Respondents to produce evidence of publication of the list of candidates cleared for the main election, which the Appellants made an issue of, the argument of learned Counsel here is that compliance with the provisions of Section 34 of the Electoral Act, 2010 has not only been held to be discretionary, but also an administrative act of the Electoral umpire and that non-compliance therefore does not affect the validity of a nomination. Counsel cited the case of KUBOR & ANOR vs. DICKSON & ORS (2012) LPELR-9817(SC), 44-46, PARAS. B-D; where the juridical import of the provision contained in Section 34 vis-à-vis the validity of nomination process concluded was expatiated upon by the apex Court. See also the case of GWEDE vs. INEC & ORS (2014) LPELR-23763(SC), 31, PARAS B-D; where the Supreme Court followed its earlier decision in KUBOR & ANOR vs. DICKSON & ORS (SUPRA), and

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reiterated the law on the propriety or otherwise of publication of the list of candidates to contest an election by the electoral body and resolved thus;
“This Court has held that publication of the list of candidates to contest an election by INEC (1st Respondent) is an administrative act which does not confer or take away validity from a duly nominated or substituted candidate. Nomination or substitution of a candidate is complete the moment INEC/1st Respondent receives the necessary documents effecting same from the political party within the stipulated time. See Kubor v Dickson (2013) All FWLR (Pt. 676) 392 at 426-427.”

Against the backdrop of the foregoing, and the established legal principle stated therein, Counsel submitted that the failure of the Respondents particularly, the 15th Respondent herein to publish the names of the 3rd, 5th to 14th Respondents in compliance with Section 34 of the Electoral Act, in the circumstances of this appeal had little or no serious legal consequences on the validity of their nomination as the Candidates of the 1st Respondent in the Chairmanship and Councillorship Election held by the 15th

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Respondent in Gwandu Local Government Council on the 26th of October, 2019.

Learned Counsel also contended that on a close look at the Notice of Appeal at pages 516-520 of the Record of Appeal will show beyond argument that the Appellants did not challenged or appeal against the specific findings of the Trial Court as required. The argument of Counsel is that in a plethora of judicial decisions the settled position of the law is that where there is no appeal against a specific finding of facts made by a Court, the findings remains unassailable and is binding on the parties. See OKUOJA vs. ISHOLA (1982) 7 SC 314; EJOWHOMU vs. EDOK-ETER MANDILLAS LTD. (1986) 6 SC 41 AT 47; OBI OKUDO vs. INSPECTOR GENERAL OF POLICE & 2 ORS (1989); ADEJUMO vs. AYANTEGBE (1989) 3 NWLR (PT. 110) 417.

It was finally contended by Counsel that the Appellants have not shown any injustice or hardship occasioned by the dismissal of the suit by the Trial Court and have also not shown that the Judgment is against the weight of evidence. Counsel said that the only pieces of evidence available on record are those, which undoubtedly approved and eulogized the dismissal of the

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suit. Consequently, he urged this Court to resolve the lone issue formulated for determination of this Appeal in favour of the Respondent particularly, the 4th and 15th Respondents; and against the Appellants.

RESOLUTION OF APPEAL
In order to have a firsthand understanding of the Court’s judgment in this Appeal and the raison d’ etre for the Court’s decision, it will be appropriate to carefully go over the facts of the matter, which gave rise to the Appeal albeit, if only in a nut-shell. The 15th Respondent herein that is, the Kebbi State Independent Electoral Commission scheduled the 2019 Local Government Council Polls for the Twenty One (21) Local Government Councils of Kebbi State for the 26th of October, 2019.

​In preparation for the Polls, the 1st Respondent that is, the All Progressive Congress (APC) scheduled its Party Primary Elections for purposes of selecting and nomination of persons to be fielded as its candidates for the main election to the 8th day of October, 2019. The Appellants and the 3rd, 5th to 14th Respondents, all members of the 1st Respondent indicated their interests in participating in the scheduled

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primaries for the posts of Chairman and Councilors of the various Wards of Gwandu Local Government Council of Kebbi State. This they did by the purchase of Expression of Interest Forms for the respective offices.

As required by the Constitution of the 1st Respondent and the Party Guidelines for the Primaries made pursuant to the Constitution, all the Candidates were required to subject themselves to the scheduled screening exercise to be conducted by the Party machinery of the 1st Respondent. This, all the Candidates did and at the end of the exercise, the Appellants even though, screened were NOT cleared to contest the primary elections of the 1st Respondent; save for the 3rd, 5th to 14th Respondents. Having successfully been screened and cleared to contest the 1st Respondent’s screening exercise the 3rd, 5th to 14th Respondents, in the absence of any oppositions, were consequently nominated as 1st Respondent’s Candidates for the offices of Chairman and Councilors respectively; in the Local Government Council Election, which held in Gwandu Local Government Council on the 26th of October, 2019,and conducted by the 15th Respondent.

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In the course of sealing the nomination of the 3rd, 5th to 14th Respondents who had no opponents after the screening exercise, the 1st Respondent by way of keeping to the democratic ethos of the process, further confirmed the choice of the aspirants by conducting an affirmation exercise of the aspirants by a voice vote of “Yes” or “No”, which was done for the 3rd Respondent and as well as the 5th to 14th Respondents. It was after this was done that the 1st Respondent submitted the names of 3rd Respondent for Chairmanship and 5th to 14th Respondents for Councillorships to the 15th Respondent as it candidates for Chairman and Councilors for Gwandu Local Government Council for Kebbi State Local Government Elections, 2019.

Dissatisfied by the nomination of the 3rd, 5th to 14th Respondents; the Appellants, by an Amended Originating Summons filed on the 6th of December, 2019, at pages 226-265 of the Record of Appeal, approached the Trial Court for the determination of a number of questions and seeking in the process to set aside the entire polls.

A careful perusal of the supporting Affidavits of the Appellants’ Amended Origination

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Summons at the Court below would readily reveal that what is exactly at the root of the grievances of the Appellants (See pages 232-248 and 576-579 of the Record of Appeal), is the very narrow question of nomination of candidates for participation in the concluded Local Government Council Elections, which held in Gwandu Local Government Area on the 26th of October, 2019. It would be recalled that the Appellants indicated their interests in participating in the primary elections of the 1st Respondent by their purchase of Expression of Interest Forms and also attended the screening exercise of the 1st Respondent conducted thereafter but were NOT cleared to participate in the primary elections.
Having therefore, not been cleared and having therefore failed to participate in the primary elections as contestants due to their having failed to be cleared, the Appellants, consequently were not aspirants/contestants in the primaries of the 1st Respondent leading to the nomination of the 3rd, 5th to 14th Respondents. To begin with, the Appellants made a heavy weather relying on various provisions of the Electoral Act, 2010 as amended even though the concluded

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Elections, whose outcome is the subject matter of this Appeal is the Local Government Elections held in Kebbi State of Nigeria and whose conduct is governed by the Kebbi State Independent Electoral Commission Law, 2000. Specifically, Section 10 of the said Kebbi Law, 2000 vests exclusive jurisdiction to organize, conduct and supervise all elections or bye-elections into elective offices of Chairman and Councilors on the Kebbi State Independent Electoral Commission.
It may be appropriate at this stage from the foregoing, perhaps to state that the reliance of the Appellants on the provisions of the Electoral Act, 2010 rather than assist, may have succeeded after all, to do incalculable damages to their claims filed before the Court below in a number of ways. For instance, the Electoral Act, 2010 has ensured that the right of a party to seek redress in any dispute arising from political primary elections is not an all-comers affair. By the provisions of Section 87(9) of the Electoral Act, 2010, (as amended), it is only a member of a political party that participated in the party’s primaries that can question the outcome of the said primaries. The apex

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Court was as clear as daylight on the issue in the case of EYIBOH vs. ABIA & ORS (2012) LPELR-20607(SC), when the Court properly identified who can institute an action in Court to complain about the conduct of a party’s primaries to exclude a person who was not a contestant/aspirant in the said primaries. At Page 50, Paras B-C, the Court per RHODES-VIVOUR, JSC, had this to say on the subject;
“A member of a political party who did not take part in the party primaries cannot complain about the conduct of the primaries. He has no locus standi to complain. Only candidates that contested the party primaries can complain about the conduct of the primaries. Section 87(9) of the Electoral Act. PDP v T. Sylva & Ors. (supra).”
See also the case of MAIHAJA vs. GAIDAM (2017) LPELR-42474(SC), PAGES 37-48, PARAS B-C, where the apex Court once again interpreted the provisions of Section 87(9) of the Electoral Act, 2010, as amended, limiting the issue of the Court to entertain complaints arising from the conduct of party’s primaries; and the issue of the locus standi to present such complaints in Court to only persons who

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participated in such primaries thus;
“Much have been written by this Court on the provisions of Section 87(9) of the Electoral Act, 2010, as amended, as it relates to invocation of the jurisdiction of the Court in a matter of nomination of a candidate of a political party to contest a general election. In the circumstances, it should now be taken as settled law that only an aspirant who took part in the primary election for the nomination of a party’s candidate for the particular election has the locus standi to approach the Court for reliefs against the result or conduct of the said election. This means that any person who did not participate in the said primary election as an aspirant lacks the locus standi to approach the Court to challenge the result of the said election – see PDP v Sylva (2012) 13 NWLR (Pt. 1316) 85 at 125; APGA v Anyanwu (2014) 7 NWLR (Pt. 1407) 541 134; Daniel v INEC (2015) 3-4 MJSC 1 at 45 etc.
In the instant case, the Appellants by their own showing, are clear as to the fact that they purchased the expression of interest Forms for participation in the primary elections of the 1st Respondent; attended its screening

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exercise but were not cleared to participate in the primaries and consequently, did not participate in the primary elections scheduled for the nomination of the Chairman and Councilors of the 1st Respondent for Gwandu Local Government Council of Kebbi State, which held in 2019. There is therefore, no gainsaying the fact that the Appellants, having failed to participate in the scheduled primaries, lack the locus standi to contest the result of the said primary elections in any Court of law and ditto the Court hearing any such matter would also lack the necessary vires to entertain same.
​It is important to note that the essence of Section 87(9) of the Electoral Act, 2010 as amended is to ensure that a Political Party does not act arbitrarily or as it likes in the conduct of its party primaries by ensuring in the process that the party complies with its Constitution and Guidelines in the selection or nomination of candidates for elective positions. The Section therefore gives a narrow window of opportunity to dissatisfied contestants or aspirants to either apply to the Federal High or State High Courts of a State or the FCT for redress. However, a person who

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did not take part in the primary as a candidate or aspirant cannot invoke the provision of Section 87(9) of the Electoral Act, 2010 as amended to institute a case in Court. Decided cases in support of this position of the law, are in the legions some of which are PDP vs. SYLVA (2012) LPELR-7814 SC; MAIHAJA vs. GAIDAM (Supra); UKACHUKWU vs. PDP (2014) 17 NWLR (PT. 1435) 134. In other words, a party who did not take part in the primaries as an aspirant has no locus standi to invoke the jurisdiction of the Court below. In essence therefore, the Appellants herein, having been disqualified at the screening stages, not cleared and consequently failed to participate in the primary elections of the 1st Respondent had no locus standi to institute the suit giving rise to this Appeal.

The Appellants, having therefore been screened and not cleared to participate in the concluded primaries of the 1st Respondent, their joint action at the Court below, in a way also obliquely challenges the powers of the 1st Respondent as a political party, not only to embark on a screening exercise of its potential candidates preparatory to its participation in a competitive election

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with other parties, but also to refusing to clear them (Appellants) as party members. The question, perhaps to therefore address at this stage is: whether the power of the 1st Respondent as a Political Party to screen and/or to clear its candidates as a pre-condition for participation in its primaries can be fettered in any way? The apex Court in the case of APC vs. ENGR. SULEIMAN ALUYI LERE (2020) 1 NWLR (PT. 1705) 254 AT 285, PARAS A-D; per RHODES-VIVOUR, JSC, had this to say on subject;
“Candidates are expected to obtain expression of interest and nomination forms, present their certificates for verification and appear before a Screening Committee. This is the stage at which the domestic or internal affairs of the political party are not justiciable. The Courts will not dabble into how a member of the party is screened, or why a member was not cleared by the party to contest the primaries. Put in another way, before a member of the party is cleared; the party has the power to disqualify their member, and is answerable to no one including the Courts. A dissatisfied member’s remedy is to leave the party and seek his political ambitions

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somewhere else.”
This Court, also in an unreported case of ABDULLAHI G. USMAN vs. ALL PROGRESSIVES CONGRESS & 2 ORS in Suit No: CA/S/8/2020, delivered on the 20th of March, 2020, held under similar circumstances as in the instant Appeal that, screening and/or clearance of a candidate is a condition precedent for qualification and participation in political party’s primary election. At page 39 of the Judgment, this Court per FREDERICK OHO, JCA had this to say on the subject;
“…The reason adopted by the 1st Respondent, whose power it is to conduct Primary Elections and nominate Candidates, was that the Appellant was not cleared to contest the Primary Election held on the 12th of October, 2019. See pages 33-50 particularly 37 of the Record of Appeal.
By Paragraph 14 of the 1st Respondent’s Guidelines, i.e., the All Progressive Congress Guidelines for Primary Election, 2014, made pursuant to Article 20 (v) of the All Progressive Congress Constitution, (October, 2014 as amended), clearance of a Candidate is a condition precedent for qualification and participation in the Primaries of the party. As it is clear from the

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record, at page 37, serial No. 1 (ii) it is not in doubt that the Appellant was not cleared prior to the Primaries of the 12th day of October, 2019 and thus; not qualified to be nominated even if it is shown that he won the Primaries in question as he is in law deemed not to be an Aspirant in the Primaries.”
It is perhaps important to note that the case of the Appellants would have been an entirely different thing if their complaints had been that they were cleared to contest the primaries and indeed participated; and were elected, but were not nominated; or that they were duly nominated by the 1st Respondent, but were wrongfully substituted with the 3rd, 5th to 14th Respondents either by the 1st or 15th Respondents. It is only then that the Appellants can conveniently activate the provisions of Section 87(9) of the Electoral Act, 2010. See APC vs. ENGR. SULEIMAN ALUYI LERE (SUPRA) AT 285, PARAS D-E; where it was held as follows;
“But once a member is cleared to contest the primaries, he becomes an aspirant. If he contests the primaries but complains about the conduct of the primaries, that any of the provisions of the Electoral Act and

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the Guidelines of his political party was not complied with in the selection or nomination of the aspirant who emerged at the primaries, his remedy is to apply to the Federal High Court or State High Court or a High Court of the Federal Capital Territory for redress.” This however, is not the situation in the instant Appeal. See once again, the reasoning of this Court in the case of ABDULLAHI G. USMAN vs. APC & 2 ORS (Supra), at PAGES 38-39, where the law on the subject was succinctly and/or well-articulated as follows;
“The position remains that the complaint of the Appellant would have been excusable if the Appellant had contended that he was cleared to contest the primaries and was duly nominated by the 1st Respondent, but was wrongfully substituted with the 2nd Respondent by the 3rd Respondent. In which case, the Appellant would have shown that his name and nomination form was duly submitted to the 3rd Respondent; but this is not the situation in this case. Here was a situation in which the Appellant was not nominated at all and therefore, lacked the legal right to insist that the 1st Respondent must nominate him. See the case of

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PEOPLE’S DEMOCRATIC PARTY & ANOR vs. TIMIPRE SYLVA & ORS. (2012) LPELR-7814 (SC), where it was held that a member of a party has no legal right to be nominated by his party. At page 35, the Apex Court per RHODES-VIVOUR, JSC has this to say on the subject;
‘The right to nominate or sponsor a candidate by a political party is a domestic right of the party. A political matter within the sole discretion of the party. A member of the party has no legal right to be nominated/sponsored by his party. A Court thus has no jurisdiction to determine who a political party should sponsor. Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party, and this is so because the sponsorship or nomination of a candidate is a pre-primary election affair of the party.”
Learned Appellant’s Counsel, in his brief of argument and as well as in his Reply Brief, made a heavy whether insisting that the old case of HON. P. C. ONUOHA vs. CHIEF R. B. K. OKAFOR & ORS (1983)10 SC. 119, which had remained a locus classicus had been set aside by the more recent case of MAIHAJA vs. GAIDAM

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(2018) 4 NWLR (PT. 1610) 454 AT 459. This Court has taken its time to read and to digest the erudite decision of the apex Court in the case of MAIHAJA vs. GAIDAM (Supra) and does not share the same view with learned Counsel on the issue. The case, rather than set aside the locus classicus aforesaid, only dealt with the vexed question of the locus standi of a person who seeks to contest the results of a primary election in a Court of law amongst other things and the jurisdiction of Court to entertain his complaints when the person, as in the instant case, did not participate in the primary elections of the party.
This Court would therefore say in answer to the assertions of the learned Appellants’ Counsel that the erudite decision of the case of MAIHAJA vs. GAIDAM (Supra), rather than setting aside the decision of the locus classicus in ONUOHA vs. OKAFOR (Supra) has indeed fortified and extended the concept of non-interference of the Courts in the domestic affairs of political parties. In the said case, it was held that the Court has no jurisdiction to entertain a claim in which it is requested to compel a political party to choose a particular

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candidate for an election. The Court, per IRIKEFE, JSC at page 144 -145 of the report had this to say on the subject;
“If a Court could do this, it would in effect be managing the political party for the members thereof. The issue of who should be a candidate of a given political party at an election is clearly a political one, to be determined by the rules and Constitution of the said party. It is thus a domestic issue and not such as would be justiciable in a Court of law unless there is a statutory provision conferring a power to do so”.
Against the backdrop of the foregoing, this Court therefore makes bold to say that it is the exclusive duty of a Political Party, nay, the 1st Respondent herein to nominate Candidates for the Local Government Council Election held in Gwandu Local Government on the 26th of October, 2019, and not otherwise. See the case of DINGYADI & ANOR vs. INEC & ORS (2011) LPELR-950 (SC), page 41, PARAS A-D, where it was held thus;
“The issue of nomination of candidates is governed by the rules governing preliminaries as to an election. Preliminary rules are those rules which determine intra-party

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resolutions and nominations to elective offices. The relationship of nomination is between the political party, its members and the electoral body. The intention of the law is to vest nomination of candidates in the membership of a political party and further make nomination a preliminary issue for any person wishing to contest. Nomination of a candidate is exclusively the responsibility of his political party under the Electoral Act 2006”.
In yet another decision of the apex Court as in numerous others, the exclusive discretion of a political party to nominate candidates for an election without interference by the Court was further emphasized in the case of SHINKAFI & ANOR vs. YARI & ORS (2016) LPELR-26050(SC), page 57, PARAS A-D; where the apex Court had this to say on the subject:
“It is settled law that the issue of nomination of a candidate by a political party for any election is within the exclusive preserve of the political parties and that the Courts have no jurisdiction to interfere therein as decided in a number of cases including Onuoha v Okafor & Ors (1983) NSCC 494; Dalhatu v Turaki (2003) 15 NWLR (Pt. 843)

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310 etc.”
​It would be recalled that the Appellants, by their own showing and based on their own depositions contained in the Affidavits in Support of the Amended Originating Summon, stated very eloquently their non-participation in the Party’s Primaries of the 1st Respondent and went on to quote with approval the depositions in the Counter Affidavit of the 3rd, 5th to 14th Respondents to show that the Appellants were not cleared to contest the primaries. At pages 15-16 of the Appellants’ Brief of Argument, the Appellants stated thus;
“That considering the facts that the 4th defendant was the only aspirant for Chairmanship that pass the screening exercise and also the facts that the 7th to 16th defendants being the sole aspirants (Councillorship) from their respective wards, the 1st defendant deemed it not necessary to conduct primary election rather an affirmation of the aspirants by vote of “Yes” or “No” which was done for the 4th defendant as well as 7th to 16th defendant “That in view of the foregoing paragraph, the 1st defendant submitted the names of 4th defendant for Chairmanship and 7th to

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16th defendants for Councillorship to the 3rd defendant as its candidates for Chairman and Councilors for Gwandu Local Government for the Kebbi State Local Government Election 2019” (See Page 268 of the Record of Appeal).”
Based on the foregoing, it is all too glaring that the complaint of the Appellants as Claimants is clearly outside the jurisdictional scope of the Court as rightly found by the Trial Court. In agreement with learned Counsel for the 4th and 15th Respondents and contrary to the arguments of the Appellants the call for the use of voice-votes (of “YES” or “NO”) in further affirming the choices made by the 1st Respondent after the screening exercise, which saw the return of the 3rd and 5th to 14th Respondents as unopposed, is no doubt clearly in line with having to further democratize the nomination process of the 1st Respondent’s primaries in keeping with the dictates of Section 87(6) of the Electoral Act, 2010 (as amended) and the Constitution of the 1st Respondent, All Progressives Congress Constitution (October, 2014 as amended). For the avoidance of doubt, Section 87 (6) of the Electoral Act,2010 as amended provides thus;

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“Where there is only one aspirant in a Political Party for any of the elective positions mentioned in paragraph (4) (a), (b), (c) and (d), the Party shall convene a special convention or congress at a designated center on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Commission as the candidate of the Party.”

On the failure of the Respondents to produce evidence of publication of the list of candidates cleared for the main election; apparently under Section 34 of the Electoral Act, 2010 (as amended) and which the Appellants at page 11 of the Appellants’ brief had made a storm out of a tea cup by arguing that such failure amounted to withholding evidence under Section 167 (d) of the Evidence Act, 2011. The attitude of this Court, without necessarily having to pore over dusty volumes is that the failure of the Respondents particularly, the 15th Respondent herein to publish the names of the 3rd, 5th to 14th Respondents in compliance with Section 34 of the Electoral Act, 2010 in the circumstances of this Appeal is clearly of no legal moment.

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In other words, the settled position of the law is that the failure of the 15th Respondent to so do, has little or no serious legal consequences on the validity of the nominations of the 3rd, 5th to 14th Respondents as the Candidates of the 1st Respondent in the Chairmanship and Councillorship Election held by the 15th Respondent on the 26th of October, 2019. Decided cases in support of this Court’s position on the issue are in their legions. For instance, see the cases of KUBOR & ANOR vs. DICKSON & ORS (2012) LPELR-9817(SC), pages 44-46, PARAS B-D; GWEDE vs. INEC & ORS (2014) LPELR-23763(SC), page 31, PARAS B-D. Going by a number of decided cases on the issue, the attitude of the Superior Courts of record in Nigeria has been that the publication of the list of candidates to contest an election, for all practical purposes, is an administrative act, which does not confer or take away validity from a duly nominated or substituted candidate and that nomination or substitution of a candidate is complete the moment the Electoral body receives the necessary documents effecting same from the political party within the stipulated time. To this

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end, see the case of KUBOR vs. DICKSON (Supra).

On the issue of non-applicability of the Electoral Act, 2010 as amended to the instant case, this being an action grounded in the validity or otherwise of an election into the Local Government Council of Kebbi State of Nigeria, and not one of the elections conducted by the INEC, the contentions of learned Counsel to the 3rd, 5th and 14th Respondents is that Sections 87(1), 87(9) of the Electoral Act, 2010 are not applicable to elections conducted at the Local Government Councils in Nigeria, particularly to Kebbi State. In his response contained in the Appellants’ Reply Brief filed on the 22-6-2020, learned Appellants’ Counsel had contended that Section 318(1) of the Constitution of Nigeria, 1999 as amended provides that the expression: “Local Government Area” or “Local Government Council” includes an “Area Council” and further contended that the provision of Sections 87(4)(d)(i)(ii) and (5) of the Electoral Act, 2010 as amended applies to the Chairmanship and Councillorship Elections across the Federation including the Federal Capital Territory, Abuja.

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After a careful consideration of the arguments of learned Counsel, this Court simply finds it difficult to fault the arguments of learned 1st, 3rd, 5th to 14th Respondents’ Counsel on the issue. There is no gainsaying the fact that the provisions of the Electoral Act, 2010 as amended and under which the Appellants have predicated their claims from inception are not applicable to the subject matter of this case, this being a Local Government Election, the conduct of which is the sole preserve of the Kebbi State Independent Electoral Commission and not the Independent National Electoral Commission (INEC). The situation can be likened to a voyage to be embarked upon by boats berthed on different streams. By predicating their action on the provisions of the Electoral Act, 2010 rather than on the provisions of the Kebbi State Independent Electoral Commission Law, 2000 the Appellants as Claimants, unwittingly boarded a boat sailing on the wrong stream with obvious calamitous consequences. In short, this Court in the case of ACN vs. RIVERS STATE INEC & ORS (2013) LPELR-21169, per FASANMI, JCA had this to say on the subject:

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“Section 25(1) of the Electoral Act, 2010 stipulates: ‘Elections into the offices of the President and Vice President, the Governor and Deputy Governor of a State and the membership of the Senate, House of Representatives and the House of Assembly of each State of the Federation shall be held in the following orders: (ii) Elections into the offices of Chairman and Vice Chairman and membership of an Area Council shall be held on the dates to be appointed by the Independent National Electoral Commission… In Section 156 of the Electoral Act, 2010, “Area Council” means Area Councils recognized and existing by virtue of Section 3(6) of the Constitution and as set out in Part II of the First Schedule thereof and any additional Area Council provided by an Act of the National Assembly in accordance with Section 8(5) of the Constitution. In Section 318 of the Constitution of Nigeria, 1999 as Amended, “Area Council” in the interpretation clause means each of the Administrative areas within the Federal Capital Territory, Abuja. Section 157 of the Electoral Act, 2010 stipulates: – ‘The Electoral Act, 2006 and Independent National Electoral Commission

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Act, Cap 15, Law of the Federation of Nigeria, 2004 are repealed’. A community reading of the relevant provisions reproduced above shows that the Electoral Act, 2006 was repealed by virtue of Section 157 of the Electoral Act, 2010. Also the provisions in the Electoral Act, 2010 did not stipulate any provision to guide and regulate the conduct of Local Government Elections… The Electoral Act, 2006 was enacted to regulate the conduct of the Local Government Election and this cannot be said of the Electoral Act, 2010. …The Area Council Election is not the same thing as the Local Government Council Election.” (Underlined, mine for emphasis).
See also the case of APC vs. PLATEAU STATE INDEPENDENT ELECTORAL COMMISSION (2018) LPELR-44569, where this Court per JAURO, JCA had this also to say on the subject:
“See PDP vs. INEC (1999) 11 NWLR (PT. 626) 191; Part iv and vi, Section 25(1) and (2) and the title of the Electoral Act, 2010 (as Amended) expressly mentioned Area Council but did not mention Local Government Council, hence by necessary implication it excludes Local Government Councils. The Constitution being the ground

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norm clearly separated Local Government Councils from Area Councils, otherwise the six Area Councils would have been added to 768 Local Government Areas to make them 774 Local Governments… the contention of the Appellant is therefore misconceived…”

Above all else, here is a matter in which the Appellants have not shown by credible evidence or any means possible, that they participated in the primaries of the 1st Respondent and were duly nominated for the main election. Here is also a matter in which the Appellants have not shown any substantial infraction of the Electoral Act and the Guidelines in the nomination of the 3rd, 5th to 14th Respondents for the elections held on the 26th of October, 2019. This Court is therefore in agreement with learned Counsel for the 4th and 15th Respondents that the reliefs sought by the Appellants at the Court below are declaratory in nature and that the law is settled that such reliefs are not granted in the absence of cogent and credible evidence adduced by the Appellants as Claimants.
The settled position of the law is that the Appellants will have to succeed on the strength of their case; the

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weakness of the defense notwithstanding. See ANYANRU vs. MANDILAS LTD (2007) 4 SC (PT. 111) 58; DUMEZ NIG. LTD vs. NWAKHOBA (2008) 18 NWLR (PT. 119) 361. In MOHAMMED vs. WAMMAKO (2017) LPELR-42667 (SC), the apex Court, per KEKERE-EKUN JSC, had this to say on the subject;
“The law is settled that in a claim for declaratory reliefs (as in the instant case), the Plaintiff must prove his entitlement to such declaratory reliefs by cogent and credible evidence. He must rely on the strength of his own case and not on the weakness of defence (if any). Indeed a declaratory relief will not be granted on the basis of admission by the adverse party. See Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361; Wallersteiner v. Moir (1974) 3 ALL ER 217 at 251; Bello v. Eweka (1981) 1 SC (Reprint) 63; Emenike v. PDP (2012) LPELR-7802 (SC), Matanmi v. Dada LPELR-19929 (SC).”

In the final analysis, this Appeal fails and it is accordingly dismissed. Consequently, the judgment of the High Court of Justice, Kebbi State, sitting at Birnin Kebbi Judicial Division and delivered on the 20th day of April, 2020 Coram: NUSIRAT T. I. UMAR, J. is hereby affirmed.

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Cost of N50,000.00 is awarded against the Appellants in favour of the 1st, 3rd, 5th to 14th Respondents.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the opportunity of reading, in draft, the Judgment just delivered by my learned brother FREDERICK O. OHO, JCA. I agree entirely with the well elucidated judgment. I adopt as mine his reasonings leading to that conclusion. I have nothing more to add.
I too dismiss the appeal and I abide by the consequential order in the lead judgment.

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Appearances:

M. Dole, Esq. For Appellant(s)

Sanusi Samaila, Esq.  for 1st, 3rd and 5th to 14th Respondents

Lagalo Dan Lagalo, Esq. for 4th and 15th Respondents For Respondent(s)