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KOLAWOLE v. INEC & ANOR (2022)

KOLAWOLE v. INEC & ANOR

(2022)LCN/17001(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, November 11, 2022

CA/ABJ/CV/1000/2022

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

HON. MATHEW KOLAWOLE APPELANT(S)

And

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. ALL PROGRESSIVES CONGRESS (APC) RESPONDENT(S)

 

RATIO

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE THE TESTIMONY OF WITNESSES BEFORE IT AND ASCRIBE PROBATIVE VALUE TO IT

Where evidence has been led by the parties, the duty of the Court is to evaluate the evidence adduced and ascribe probative value or weight to such evidence. In an action seeking declaratory relief, the Court will first of all, consider the evidence adduced by the Plaintiff, and where such evidence establishes a prima facie case for the declaration sought, the Court will then consider the evidence led of the defendant so as to see if it has successfully rebutted the evidence led by the plaintiff. Where the evidence led by the defence fails to rebut that of the Plaintiff, the Plaintiff’s claim will succeed but where it is successfully rebutted the declaration will be refused. It therefore means that, even where the defendant fails to file a defence or fails to adduce evidence, the declaration may not be granted where the evidence led by the Plaintiff fails to prove the claim upon preponderance of evidence. This is particularly so when the decision whether or not to grant the declaratory relief is at the discretion of the Court premised on satisfactory evidence. See Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544, Eyiboh v. Abia & Ors. (2012) 16 NWLR (Pt. 1325) 51 and Adewuyi v. Yewande (2015) LPELR – 41’675 (CA). In the case of Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527 at 547, the Supreme Court held that:
“The point was again emphasized by this Court in the case of Duru v. Nwosu (1989) 4 NWLR (Pt 113) P.24. The Court explained that the proper procedure is that the trial Judge ought always to start by considering the evidence led by the Plaintiff to see whether he has led evidence on all the material issues he needs to prove…….If he has not led evidence, or if the evidence led by him is so patently unsatisfactory, then he has not made out what is referred to as a prima facie case, in such case the trial Judge does not have to consider the case of the Defendant at all.  PER TSAMMANI, J.C.A.

THE DEFINITION OF THE PHRASE “SUBJECT TO”

The phrase “subject to” has been defined by the Supreme Court in a number of cases. Thus, in Kaycee (Nig.) Ltd. v. Prompt (1986) 1 NWLR (Pt. 15) 180, the Supreme Court held that, the expression “subject to” in a document or statute is used to assign a subordinate position to a clause or other enactment. That when it is used, the former clause is subordinated to the latter clause, and will be postponed till the latter has been considered in a situation when the two are in conflict. See F.R.N. v. Osahon & Ors (2006) LPELR – 3174 (SC), N. D. I. C. v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107, Texaco Panama Incorporation v. Shell Petroleum Dev. Corporation of Nigeria Ltd (2002) 5 NWLR (Pt. 759) 209, Attorney General of Ogun State v. Attorney-General of the Federation (2002) LPELR – 621 (SC) and Ebhota & Ors v. Plateau Investment & Property Dev. Co. Ltd. (2005) 15 NWLR (Pt. 948) 266. See also Balonwu & Ors v. Governor of Anambra State & Ors (2010) 18 NWLR (Pt. 1172)13. Thus, in Oloruntoba-Ojua & Ors v. Abdul-Raheem & Ors (2009) 13 NWLR (pt. 1157) 83, the Supreme Court per Adekeye, JSC said:
“Whenever the phrase “subject to” is used in a statute, the intention, purpose and legal effect is to make the provisions of the Section inferior, dependent on, or limited and restricted in application to the Section to which they are made subject to. In other words, the provision of the latter Section shall govern, control and prevail over the provision of the Section made subject to it. It renders the provision of the subject Section subservient, liable, subordinate and inferior to the provision of the other enactment…”
PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Nigeria, Lokoja Division delivered by Peter H. Malong, J on the 8th day of September, 2022 in Suit No: FHC/LKJ/CS/35/2022.

By an Originating Summons filed on the 28/06/2022, the Appellant who was Plaintiff in the Court below, advanced the following questions for determination:
1. Whether upon dispassionate consideration of Sections 29 and 32 of the Electoral Act, 2022 and having won the primary election conducted by the 2nd Defendant on the 27th day of May, 2022 which was conducted in consonance with Section 84 of the Electoral Act, 2022, the 2nd Defendant ought not to have forwarded the Plaintiff’s name to the 1st Defendant as her candidate for the seat of Kabba-Bunu/Ijumu Federal Constituency of Kogi State in the Scheduled 2023 general election?
2. Whether the 1st Defendant who monitored and issued a report on the conduct of the 2nd Defendant’s primaries that produced the Plaintiff as the winner of the primary, can neglect and or refuse to accept and publish the name of the claimant as the winner and sponsored candidate of the 2nd Defendant for the seat of Kabba- Bunu/Ijumu Federal Constituency of Kogi State in flagrant disobedience to the provisions of Section 29 and 32 of the Electoral Act, 2022?

The Plaintiff/Appellant then prayed that if the questions are answered in his favour, he be granted the following reliefs:
1. A DECLARATION that the claimant having won the primary election conducted by the 2nd Defendant (APC) on the 27th of May, 2022 for the seat of Federal House of Representatives, Kabba-Bunu/Ijumu Federal Constituency in Kogi State, towards the 2023 genera! election, is and remain the duly elected candidate of the 2nd Defendant to be sponsored for the Kabba-Bunu/Ijumu Federal Constituency under the platform of the 2nd Defendant, All Progressives Congress.
2. AN ORDER directing the 2nd Defendant to forward the name of the Plaintiff to the 1st Defendant as the sponsored candidate of the 2nd Defendant for the seat of Kabba-Bunu/Ijumu Federal Constituency of Kogi State towards the 2023 general election.
3. AN ORDER directing and mandating the 1st Defendant to unconditionally accept and publish on their portal and all or any other reasonable channel, the name of the Plaintiff as the duly sponsored candidate of the 2nd Defendant for the seat of Kabba-Bunu/Ijumu Federal Constituency of Kogi State towards the 2023 general election.

A concise fact of the Plaintiff/Appellant’s case is that, he was an aspirant at the 2nd Respondent’s primary election, to choose its candidate for the general election to represent the Kabba-Bunu/Ijumu Federal Constituency of Kogi State in the House of Representatives. That at the primary election, which was peaceful, he (Appellant) scored the highest number of votes and was duly declared winner. That the 1st Respondent monitored the conduct of the said primary election and issued a report that the election was peaceful and that the Appellant emerged as the winner. It is therefore the case of the Appellant that, having won the said primary election, the 2nd Respondent is mandated by the Electoral Act to submit his name and personal particulars to the 1st Respondent through the 1st Respondent’s Candidates Nomination Portal (ICNP). However, that, the 2nd Respondent made several attempts to upload the name and particulars of the Appellant into the said Portal to no avail as the portal continuously rejected the upload due to failure of the 1st Respondents server. Therefore, that the name of the Appellant did not appear when the list of candidates sponsored in the various Federal Constituencies of Kogi State were published. The Appellant then approached the Court below seeking the reliefs as stated in the Originating Summons.

At the trial in the Court below, the parties adopted their respective processes and in a judgment delivered on the 8th day of September, 2022 the learned trial judge found that:
“The argument as to the permissible restrictions of Section 29 and 32 of the electoral act, is of no assistance, reason being that the particulars of the Plaintiff to be uploaded were not received by the 1st Defendant from the 2nd Defendant for that purpose, then what would have being (sic) in advertently fail to have been done or missing in case of the 1st Defendant?”

The learned trial Judge then concluded that:
“This Court, hereby holds that non-compliance with the provisions of the 1st Defendant’s guideline (Exhibits INEC 1 and 2) qualifies as non-compliance with the Electoral Act, 2022.”

On that note, the learned trial judge found the Plaintiff/Appellant’s case to be without merit and consequently dismissed same. Peeved by the decision, the Plaintiff has filed this appeal.

The Notice of Appeal consisting of six (6) Grounds of Appeal was filed on the 16/09/2022. Parties then filed and served Briefs of Arguments. The Appellant’s Brief of Argument was filed on the 28/9/2022. One issue was distilled therein for determination as follows:
“Whether the trial Court was right when it held that, non-compliance with 1st Respondent’s guidelines, qualifies as non-compliance with the Electoral Act, 2022 and on account of that dismissed the Appellant’s case for lacking in merit”.
(Grounds 1 – 6 of the Notice of Appeal).

The 1st Respondent’s Brief of Argument was filed on the 30/9/2022. Like the Appellant, the 1st Respondent also distilled only one issue for determination as follows:
“Whether the trial Court was right when it held that non-compliance with the 1st Respondent’s guidelines qualifies as non-compliance with the Electoral Act, 2022 on the authority of Section 148 of the Electoral Act and held that the Appellant’s case was lacking in merit and as such dismissed it.”

The 2nd Respondent also filed a Brief of Argument. It was filed on the 30/10/2022. After restating the facts of the case, the 2nd Respondent conceded to the appeal.

I have carefully studied the issues raised by the Appellant and 1st Respondent. It is clear to me that the issues are similar in context and scope. In that respect, I shall determine this appeal on the lone issue formulated by the Appellant.

Now, in arguing the appeal, M.Y. Abdullahi, Esq who settled the Appellant’s Brief of Argument drew our attention to the reliefs sought by the Plaintiff/Appellant to submit that, the Appellant’s case in the Court below, was anchored principally on the provisions of Sections 29(1) & 2 and 32 (1) of the Electoral Act, 2022. That contrary to the findings of the trial Court the Appellant placed before the Court facts in the supporting Affidavit to the Originating Summons sufficient enough for the grant of the reliefs sought. That the Appellant supplied documentary evidence in Exhibits MYA1, MYA2, IMYA3, MY4 and MY5 showing that he is a registered member of APC (2nd Respondent). He also exhibited the Summary of the Result showing that he scored the highest number of total votes cast at the primary election, report of the good conduct of the election and the report which adjudged that the conduct of the primary election was peaceful and the report from the (1st Respondent) who monitored the primary election showing that its officers monitored the election, and that the Appellant was declared winner having scored the highest votes cast.

Learned counsel for the Appellant then contended that, instead of giving consideration to the convincing and compelling evidence supplied by the Appellant, the learned trial judge reached a decision which occasioned a miscarriage of justice. Referring to Sections 29(1), 32(1) and 84(14) of the Electoral Act, 2022 learned counsel submitted that, the duty of the 2nd Respondent was only to submit to the 1st Respondent the List of its candidates it proposes to sponsor at the elections who have emerged from a valid primary election conducted by it (2nd Respondent), not later than 180 days before the conduct of the general elections, including the names and personal particulars. That the 2nd Respondent then had the mandatory duty to publish in its website or any other place so designated, the name and particulars of each of its candidates at least 150 days before the general election. The case of Saraki v. FRN (2016) LPELR – 40013 (SC) was then cited to submit that, the provisions of Sections 29(1) and 32(1) are clear, unambiguous and do not give room for any discretion, modification or variation.

Learned counsel for the Appellant went on to submit that, the Affidavit of the Appellant in support of the Originating Summons was corroborated by both Respondents. That it has not been argued by any of the Respondents that the Appellant who is a member of the 2nd Respondent and satisfied all constitutional requirements of eligibility to contest, and who emerged winner of the validly conducted primary election conducted by the 2nd Appellant was not so qualified. That the first relief sought is against the 2nd Respondent who not only admitted all the facts deposed to by the Appellant, but filed an Affidavit of No Opposition to the Appellant’s claim. It was then submitted that, the law is clear that facts admitted need no further prove. The case of Ajibulu v. Ajayi (2013) LPELR – 21860 (CA) was cited in support. That in the circumstances, the learned trial judge ought to have granted the 1st and 2nd reliefs sought by the Appellant.

Learned counsel for the Appellant then argued that, the defence of the 1st Respondent is that, in compliance with Exhibits INEC 1 and INEC 2, to wit: INEC Time Table and Guidelines respectively, the 2nd Respondent ought to have submitted the name of the Appellant by 9:00am of 10/6/22 – 9:00pm of 17th of June, 2022. That the learned trial judge agreed with the 1st Respondent and held that, the failure to submit the name of the Appellant as stipulated in the INEC Time Table and Guidelines amounted to non-compliance with the Electoral Act, 2022. While not disputing the power donated by the Electoral Act for the 1st Respondent to make such Guidelines, the Appellant contended that such Guidelines are only subsidiary legislations which cannot vary any of the provisions of the Electoral Act.

Turning to paragraphs 8, 9 and 10 of the 2nd Respondent’s Affidavit in reply to the 1st Defendant’s counter-affidavit, as the 2nd Respondent is mandated by Section 29(1) of the Electoral Act, 2022 to forward the name of the Appellant to the 1st Respondent, so is the 1st Respondent statutorily mandated to accept and publish in its portal the name and particulars of the Appellant as required by Section 32(1) of the Electoral Act. We were then urged to hold that Exhibit INEC 1 was made to vary the provisions of Section 29(1) and 32(1) of the Electoral Act, 2022, which is forbidden in law. Therefore, that the holding of the trial Court that non-compliance with the INEC Guidelines and Time Table qualifies as non-compliance with the Electoral Act was not rooted in law leading to a miscarriage of justice. The case of Nyesom v. Peterside & Ors (2016) LPELR-40036 (SC) was cited in support, and to also urge us to hold that, non-compliance with Exhibit INEC 1 and 2, does not amount to non-compliance with the Electoral Act, 2022.

Learned counsel for the Appellant went on to submit that, the depositions in paragraphs 8, 9, 10 and 11 of the Affidavit in support of the Originating Summons and 6(F – J) of the 2nd Respondent were not specifically denied by the 1st Respondent. That it’s the law that, where a defendant intends to deny facts in an affidavit, bare denials will not be sufficient. That, a proper response by the 1st Respondent would have been that, there was stable network, its server was responding well, that the 2nd Respondent did not attempt to upload the Appellant’s name and particulars from 14th – 17th of June, 2022 and that its Portal or website was never affected by unstable network. That in the circumstances, the depositions of the Appellant which were never challenged nor controverted remain true and credible evidence which ought to be given effect by the trial Court. The case of Nigeria Social Insurance Trust Fund Management Board v. Klifco Nigeria Ltd (2010) LPELR – 2006 (SC) was cited in support. That in any case, the 1st Respondent deposed that the 2nd Respondent was able to upload the names and particulars of eight 8 of the 9 candidates in the Federal Constituency sponsored by the 2nd Respondent were uploaded into the INEC Portal.

Learned counsel for the Appellant also urged us to hold that, failure to upload the names and particulars of the Appellant was an infringement of the right of the Appellant to have his name uploaded into the INEC Portal as the candidate of the Appellant for Kabba-Bunu/Ijumu Federal Constituency of Kogi State. The case of Lau v. PDP & Ors (2017) LPELR – 42800 (SC) was then cited in support. We were also urged to hold that, the Appellant having participated in the 2nd Respondent’s primary election for Kabba-Bunu/Ijumu Federal Constituency, scored the highest number of votes and subsequently declared the winner as exhibited by MYA2 -MYA5, his name and particulars ought to have been uploaded by the 2nd Respondent. That in any case, the 1st Respondent has not shown how it will be prejudiced by the grant of the reliefs sought by the Appellant. We were then urged to resolve the issues in favour of the Appellant.

Learned counsel for the 1st Respondent submitted that, Section 148 of the Electoral Act, 2022, empowers the commission (1st Respondent) to issue regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Electoral Act. That, it is in the exercise of that power that the 1st Respondent made Exhibits INEC 1 & 2 and issued same to all political parties, including the 2nd Respondent. That the time table and Schedule of Activities for Elections issued by the 2nd Respondent are sacrosanct and must be complied with. That, any activity conducted outside the time table is liable to be declared null and void. That in the circumstances, the depositions in paragraphs 9, 10 and 11 of the Appellant’s Affidavit in support of the Originating Summons cannot hold water when the 2nd Respondent uploaded all its candidates save for that of the Appellant.

It was also contended that, the Appellant argued that, the trial Court failed to consider the argument pertaining to the primary election but the crux of the 1st Respondent’s case pertains to the failure to upload the name and particulars of the Appellant. While conceding that the Appellant won the primary election of the 2nd Respondent for the Kabba-Bunu/Ijumu Federal Constituency of Kogi State and ipso facto the person whose name ought to be submitted to the 1st Respondent by the 2nd Respondent as its candidate for the constituency in the 2023 general election, the 17th of June, 2022 was set by Exhibit INEC1, for the submission of names and particulars for the Presidential and National Assembly Election, the name of the Appellant had not been sent as at the close for nomination or submission on the 17/6/2022.

Learned counsel for the 1st Respondent went on to submit that, the Supreme Court has in the case of NDP v. INEC (2013) 6 NWLR (Pt. 1350) 392 at 396, affirmed the prerogative of the commission (1st Respondent) to issue Time Table for elections. The cases of Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61 at 157, Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340, CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493, etc, were also cited in support. Furthermore, that the power of the 1st Respondent to issue Time Table, Regulations, Guidelines and Manuals for electoral activities is statutory and therefore, have the force of law. Learned counsel then submitted that, the trial Court was right when it dismissed the Appellant’s suit for lacking in merit. We were accordingly urged to allow the appeal and uphold the Judgment of the trial Court.

As I stated earlier in the course of this Judgment, the 2nd Respondent conceded to the appeal.

Now, it is clear to me, that the substance of the claim in the Court below, was made by the Appellant (Hon. Mathew Kolawole) who was the plaintiff thereat. Essentially, he sought a DECLARATION that he is and remain the duly elected candidate of the 2nd Respondent herein, for the Kabba-Bunu/Ijumu Federal Constituency of Kogi State. He then prayed for a consequential order that INEC (1st Respondent herein) be directed to accept and publish his name on its portal, as the duly elected candidate of the 2nd Respondent for the seat representing Kabba-Bunu/Ijumu Federal Constituency of Kogi State in the 2023 general election. Therefore, the main claim of the Plaintiff/Appellant, is for a declaratory relief, and being declaratory, the said Plaintiff had the onerous duty to adduce credible evidence to satisfy the Court that he is entitled to the declaration sought. As a declaratory relief, it cannot be granted without the Plaintiff adducing evidence because, a declaratory relief cannot be granted even on admission by the defendant or failure of the defendant to give evidence. In proving his claim, the Plaintiff is required to rely on the weight of the evidence adduced by him, though, he may rely on that part of the Defendant’s case that supports his claim in order to strengthen his claim. Ultimately however, the onus of proof lies squarely at the feet of the Plaintiff. See CPC v. INEC (2011) LPELR – 8257 (SC), MTN v.  Corporate Communication Investment Ltd. (2019) LPELR – 47042 (SC) and Col. Nicholas Ayanru (Rtd.) v. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) 463 at 477 – 478.

Where evidence has been led by the parties, the duty of the Court is to evaluate the evidence adduced and ascribe probative value or weight to such evidence. In an action seeking declaratory relief, the Court will first of all, consider the evidence adduced by the Plaintiff, and where such evidence establishes a prima facie case for the declaration sought, the Court will then consider the evidence led of the defendant so as to see if it has successfully rebutted the evidence led by the plaintiff. Where the evidence led by the defence fails to rebut that of the Plaintiff, the Plaintiff’s claim will succeed but where it is successfully rebutted the declaration will be refused. It therefore means that, even where the defendant fails to file a defence or fails to adduce evidence, the declaration may not be granted where the evidence led by the Plaintiff fails to prove the claim upon preponderance of evidence. This is particularly so when the decision whether or not to grant the declaratory relief is at the discretion of the Court premised on satisfactory evidence. See Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544, Eyiboh v. Abia & Ors. (2012) 16 NWLR (Pt. 1325) 51 and Adewuyi v. Yewande (2015) LPELR – 41’675 (CA). In the case of Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527 at 547, the Supreme Court held that:
“The point was again emphasized by this Court in the case of Duru v. Nwosu (1989) 4 NWLR (Pt 113) P.24. The Court explained that the proper procedure is that the trial Judge ought always to start by considering the evidence led by the Plaintiff to see whether he has led evidence on all the material issues he needs to prove…….If he has not led evidence, or if the evidence led by him is so patently unsatisfactory, then he has not made out what is referred to as a prima facie case, in such case the trial Judge does not have to consider the case of the Defendant at all.”

The case at the trial Court was instituted by Originating Summons supported by an Affidavit. Having carefully studied the Affidavit, I am of the view that paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the Affidavit are crucial to the determination of this appeal. Therein, the Plaintiff/Appellant deposed as follows:
“5. That consequent on the above, I obtained a nomination/expression of interest from under the platform of the 2nd Defendant to enable me participate in the primary election organized by the 2nd Defendant for the purpose of nominating and sponsoring a candidate to participate in the general election for Kabba- Bunu/Ijumu Federal Constituency in the year 2023.
4. That I know as a fact that having been cleared to participate in the primary of the 2nd Defendant, I did participate in the primary conducted on the 27th day of May, 2022 and emerged the winner of the primary having pulled the highest lawful votes cast. The Summary Result Sheet of the election duly signed by the Chairman and Secretary of the 2nd Defendant Primary Election Committee on the 28h May, 2022 is attached as Exhibit MYA2.
5. That as a fact, in furtherance to above, the 2nd Defendant Primary Election Committee issued a report dated 27th May, 2022 indicating that the Plaintiff won the primary election under the platform of the 2nd Defendant for Kabba- Bunu/Ijumu Federal Constituency of Kogi State. The Copy of the Report dated 27th May, 2022 is attached as Exhibit MYA 3.
6. That I know as a fact that the Nigerian Police was cleared by the 2nd Defendant to observe and provide security during the conduct of the 2nd Defendant primary election for Kabba-Bunu/Ijumu Federal Constituency held on the 27th May, 2022 and at the end of the primary exercise, the Divisional Police Officer Kabba Division, CSP Bamidele Tawose, who monitored and provided security at the primary venue issued a Police Report on the Conduct of the primary election indicating that it was peaceful and that I emerged as the winner. Copy of the report is attached as Exhibit MYA4.
7. That I verily know that the representatives of the 1st Defendant duly monitored the conduct of the primary election of the 2nd Defendant that produced me as the winner on the 27th May, 2022 and equally they issued a detailed report on the conduct of the primary election clearly indicating that I won the election. The copy of the 1st Defendant Report is attached as Exhibit MYA 5.
8. That I know as a fact that in compliance with the instruction of the 1st Defendant, the details of candidates of political parties are to be uploaded online through a portal created by the 1st Defendant.
9. That while the 2nd Defendant was uploading the relevant details of my particulars on the 1st Defendant online portal, the portal continually rejected the upload due to unstable network, hence the inability to have my name on the 1st Defendant portal.
10. That upon discovery of the rejection of my name by the 1st Defendant’s online portal, I made several attempt to persuade the 2nd Defendant to keep the effort on in uploading my persona! details but I was made to understand that the problem is from the 1st Defendant portal.
11. That I know as a fact that I also made attempt with the 1st Defendant to allow my name into their portal as the duly sponsored candidate of the 2nd Defendant for the Kabba-Bunu/Ijumu Federal Constituency of Kogi State but I was made to understand that the hands of the 1st Defendant is tied in that regard.
12. That as a fact, the 1st and 2nd Defendant are not prepared to forward and accept my name as the duly sponsored candidate of the 2nd Defendant in the Scheduled General Election for Kabba-Bunu/Ijumu Federal Constituency of Kogi State.
13. That as a fact, on the 24th day of June, 2022 the 1st Defendant published the names of sponsored candidate of the 2nd Defendant’s for the 2023 General Election in Nigeria and the space for Kabba-Bunu/Ijumu Federal Constituency is empty because the 1st Defendant’s online portal failed to allow the upload of my personal details.
14. That I know as a fact that my right as the winner of the 2nd Defendant’s primary election for Kabba-Bunu/Ijumu Federal Constituency of Kogi State will be lost if this Court did not intervene urgently in this issue.
15. That I was informed by One Barrister Naziru Abubakar, a lawyer practicing in Lokoja, Kogi State on the 27th day of June, 2022 in his office at Ibrahim Taiwo road, Opposite Police Barracks Lokoja, Kogi State, of the following facts which I verily believed to be true:-
a. That the 1st Defendant will not accept my name as the candidate of the 2nd Defendant except through an order of Court.
b. That the 1st Defendant will continue to drag and delay the acceptance of my name as candidate of the 2nd Defendant till it will become practically impossible for me to participate in the 2023 General Election.
c. That if the Court direct the 1st Defendant to accept my name and publish same as the sponsored candidate of the 2nd Defendant, the 1st Defendant will accept it wholesale.
d. That accepting my name as the candidate of the 2nd Defendant causes no harm or injury to the 1st Defendant.”

The 2nd Respondent who was the 2nd Defendant in the Court below did not oppose the Plaintiff/Appellant’s case as it filed an Affidavit of No Opposition and a Further and Better Affidavit of No Opposition on the 7/7/2022. Therein, the 2nd Respondent deposed at paragraphs 7, 8, 9, 10, 13, 14, 15, 16, 17 and 18 as follows:
7. That as for the position of the 2nd Defendant, I state as follows:
a. That the Plaintiff is a member of the 2nd Defendant a Political Party in Nigeria registered by the 1st Defendant being the institution responsible for the conduct of general election in Nigeria, that the Plaintiff contested under the 2nd Defendant platform for the 2023 Primary election particularly for the Kabba-Bunu/Ijumu Federal Constituency and he was returned elected having score the highest number of votes.
b. That I know in compliance with the 1st Defendant 2023 general election guideline and schedule of election, the Plaintiff submitted to 2nd Defendant prescribed – FORM EC9 along with his credentials for upload via 1st Defendant server as prescribed by the 2023 guideline. That the 1st Defendant 2023 general election guideline is hereby attached as Exhibit SAB 1.
3. That I know as a fact that my department was responsible for the receipt, acknowledgment and computation of affidavit in support of personal particulars otherwise known as Form EC9 filled by candidates of the 2nd Defendant for onward uploading, transmission and submission to the 1st Defendant online server.
9. That I know as a fact that the Plaintiff did submitted his For EC9 to the 2nd Defendant on the14th day of June, 2022 after he dully deposed to same at the Federal High Court of Nigeria, Lokoja Division,
10. That I know as a fact that the Form EC9 being information accompanied by an affidavit as provided in the 1st Defendant Guidelines for 2023 General elections was submitted by the Plaintiff within the window given for submission of nomination Forms via online portal of the 1st Defendant.
13. That I know as a fact that the 2nd Defendant did attempted to upload the Plaintiff personal particulars and credentials to 1st Defendant portal for publication but all attempt was to no avail and the 2nd Defendant did not know that the submission did not reflect on the portal on 17th June, 2022 until the 24th June, 2022 when the 1st Defendant published names of sponsored candidate for National Assembly and Plaintiff’s name and some other 2nd Defendants candidates in other States were missing.
14. That I know as a fact that the Plaintiff did obtained 2nd Defendant’s expression of interest/nomination form and got cleared for the year 2023 House of Representatives primary election by the 2nd Defendant and he won the highest number of valid votes to become the 2nd Defendant candidate for Kabba-Bunu/Ijumu Federal Constituency.
15. That the said 2nd Defendant party primary was conducted by the National Executives of the All Progressives Congress wherein the Plaintiff scored 69 votes.
16. That I know as a fact that the Plaintiff emerged from a valid primary of the 2nd Defendant.
17. That I know as a fact that the Plaintiff list of information and the accompanied affidavit to show that Plaintiff has fulfilled all constitutional requirements for election for House of Representatives was sent severally to the 1st Defendant server for publication but the information could not be submitted due to network failure and lack of access to the 1st Defendant server between 14th day of June, 2022 and 17th day of June, 2022.
16. That I know as a fact that the window for submission of nominee for other elective positions to 1st Defendant server is still open and ongoing till 17th July, 2022, that the error occasion in submitting Plaintiff particulars was unintentional but failure of 2nd Defendant computer to link the up with 1st Defendant’s server.”

In opposition to the reliefs sought in the Originating Summons, the 1st Respondent herein, who was the 1st Defendant in the Court below filed a Counter-Affidavit of 8 paragraphs wherein it was deposed in paragraphs 5, 6 and 7 as follows:
“5. Paragraphs 1, 2, 3, 4, 5, 6 and 7 of the Affidavit in Support of the Originating Summons are admitted.
6. The 1st Defendant denies paragraphs 8, 9, 10, 11, 12, 13, 14 15(a) – (d) and 17 of the Affidavit in Support of the Originating Summons and in response to the said affidavit, I state as follows:
i. I was informed by Alhasan A. Umar, SAN, lead senior counsel, in the Litigation & Prosecution Department of the 1st Defendant on 18th July, 2022 while preparing this defense in his office around 10:00am at the Headquarters of the 1st Defendant which information I verily believed to be true and correct that:
a. The 1st Defendant issued Time and Schedule of Activities for 2023 General Elections. A copy of the said Time Table is hereby attached and Marked Exhibit INEC 1.
b. The 1st Defendant also issued Guidelines for Nomination of Candidates for Elections. A copy of the said Guidelines is hereby attached and marked Exhibit INEC 2.
c. Copies of Exhibit INEC 1 and INEC 2 were issued to all registered political parties including the 2nd Defendant to guide them and all stakeholders on the dates and guidelines for the conduct of all activities including the submission of the names of candidates to the 1st Defendant.
d. I know that Paragraph 4 of Exhibit INEC 1 provides for submission of names and forms of candidates from 9am on 10th June – 6pm on 17th June, 2022.
e. I also know that neither the Plaintiff, the 2nd Defendant nor any other political party challenged Exhibit INEC 1 and INEC2.
f. In line with Exhibit INEC 1 and 2, the 2nd Defendant only uploaded the names and particulars of the candidates for 8 Federal Constituencies out of the 9 Federal Constituencies in Kogi State. The 2nd Defendant did not upload the name and particulars of the Plaintiff or any other person as its candidate for Kabba- Bunu/Ijumu Federal Constituency of Kogi State.
g. The publication done by the 1st Defendant on 24th June, 2022 are personal particulars of the duly nominated Candidates of the 2nd Defendant and other political parties for Presidential and National Assemble election in line with the provisions of the law.
h. Contrary to the depositions in paragraphs 15(a) – (d) of the Affidavit in support of the Originating Summons, the name and particulars of the Plaintiff can only be accepted by the 1st Defendant if it’s done in compliance with the provisions of the law.”

From the various Affidavit’s and Counter-Affidavit deposed at the trial, it can be gathered that, on the 27th day of May, 2022, the 2nd Respondent herein, as a political party conducted primary election to elect its candidate to contest the general election for the Kabba-Bunu/Ijumu Federal Constituency in the House of Representatives of Nigeria. That, the primary election was duly conducted under the watchful eyes of the 1st Respondent (INEC) and other security agents. At the conclusion of the election, the Appellant herein, scored the highest number of votes and was accordingly declared winner. The Appellant having scored the highest number votes, became the candidate of the 2nd Respondent to contest for the seat of member representing Kabba-Bunu/Ijumu Federal Constituency in the House of Representatives. By Section 29(1) of the Electoral Act, 2022, his political party, being the 2nd Respondent (APC) was enjoined to submit to the Electoral Commission (1st Respondent), the list of the candidates it proposes to sponsor at the elections, which candidates must have emerged from valid primaries conducted by the political party.

The 2nd Respondent deposed to the fact that, in their effort to comply with Section 29 of the Electoral Act, 2022, tried to submit the name and personal particulars of the Appellant to the 1st Respondent by uploading same to the portal provided by the 1st Respondent for that purpose but failed. That as a result, the 1st Respondent failed or refused to publish the name of the 2nd Respondent’s candidate (Appellant) as required by Sections 29(3) and 32 of Electoral Act, 2022. The 1st Respondent did not controvert those vital facts as deposed to by the Appellant and 2nd Respondent in their respective Affidavits filed in the Court below. It is the law that, where facts are deposed in an affidavit, the opponent has a duty to controvert them by way of a Counter-Affidavit otherwise those facts will be deemed or regarded as admitted and duly established. In other words, deposition in an affidavit which are neither challenged nor controverted, the Court will be right if it relies on them in determining the issue. See Long – John v. Blakk & Ors (1998)6 NWLR (Pt. 555) 524, Agu v. Okpoko (2009) 3 FWLR (Pt. 487) 7229 and Francis v. Citec International Estate Ltd. (2010) 16 NWLR (Pt. 1219) 243. The only exception is, where it is found that the depositions in the affidavit are contradictory or unreasonably in the circumstances. Thus in Daniel & Anor v. Ayala & Anor (2019) 18 NWLR (Pt. 1703) 25 at 36 Paras. F – H and 37 Paras. A – B, the Supreme Court per Nweze, JSC held that:
“Now, the truth of the matter as this Court has held in many cases is that an affidavit is a deposition by the deponent stating dearly his factual position on the issue for consideration. Once the facts deposed to in an affidavit have not been controverted, such facts must be taken as true except they are moonshine.”

On the above cited authorities therefore, it remains proved that the 2nd Respondent’s candidate (Appellant) emerged via a validly conducted primary election of the 2nd Respondent. It also remains established that, the 2nd Respondent in an effort to comply with Section 29 (1) of the Electoral Act (supra) tried to transmit the name and personal particulars of the Appellant by uploading same into the 1st Respondent portal set up for that purpose, but was frustrated by the consistent failure of the said portal. The 2nd Respondent argues in the circumstances, that they were by Section 29(1) of the Electoral Act within the 180 days stipulated therein to the conduct of the general election, to submit the names of its candidates, particularly the Appellant, and that the 1st Respondent was bound to accept and publish the name of the Appellant as its candidate within the 150 days before the day of the election as stipulated in Section 32 of the Electoral Act, 2022.

The defence of the 1st Respondent as deposed in paragraphs 6(i) (a) – (h) of its Counter-Affidavit filed in the Court below is that, it issued a Time Table and Schedule of Activities for the General Elections. That it also issued Guidelines for nomination of candidates for the elections. That by the Guidelines the 2nd Respondent was required to upload the name and personal particulars of its candidates on the INEC Candidates Nomination Portal (ICNP). That the 2nd Respondent submitted the names and personal particulars of the candidates it would be sponsoring for the Presidential and National Assembly elections but did not upload or submit that of the Appellant.

Now, it is not in doubt that, by Section 148 of Electoral Act, 2022, the Commission (1st Respondent) has the powers to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the Electoral Act and for its administration. A close and sober reading of Section 148 of the Electoral Act will show that the operation of such regulations, guidelines and/or manuals is made “subject to” to the provisions of the Act. The phrase “subject to” has been defined by the Supreme Court in a number of cases. Thus, in Kaycee (Nig.) Ltd. v. Prompt (1986) 1 NWLR (Pt. 15) 180, the Supreme Court held that, the expression “subject to” in a document or statute is used to assign a subordinate position to a clause or other enactment. That when it is used, the former clause is subordinated to the latter clause, and will be postponed till the latter has been considered in a situation when the two are in conflict. See F.R.N. v. Osahon & Ors (2006) LPELR – 3174 (SC), N. D. I. C. v. Okem Ent. Ltd. (2004) 10 NWLR (Pt. 880) 107, Texaco Panama Incorporation v. Shell Petroleum Dev. Corporation of Nigeria Ltd (2002) 5 NWLR (Pt. 759) 209, Attorney General of Ogun State v. Attorney-General of the Federation (2002) LPELR – 621 (SC) and Ebhota & Ors v. Plateau Investment & Property Dev. Co. Ltd. (2005) 15 NWLR (Pt. 948) 266. See also Balonwu & Ors v. Governor of Anambra State & Ors (2010) 18 NWLR (Pt. 1172)13. Thus, in Oloruntoba-Ojua & Ors v. Abdul-Raheem & Ors (2009) 13 NWLR (pt. 1157) 83, the Supreme Court per Adekeye, JSC said:
“Whenever the phrase “subject to” is used in a statute, the intention, purpose and legal effect is to make the provisions of the Section inferior, dependent on, or limited and restricted in application to the Section to which they are made subject to. In other words, the provision of the latter Section shall govern, control and prevail over the provision of the Section made subject to it. It renders the provision of the subject Section subservient, liable, subordinate and inferior to the provision of the other enactment…”
It therefore means that when Section 148 of the Electoral stipulates that “subject to” the provisions of the Act, the Commission may issue regulations, guidelines, or manuals, it means that such regulations, guidelines, or manuals are subordinated to the provisions of Electoral Act. Therefore, where there is, as in the instant case, or there appears to be a conflict between the Guidelines and Sections 29 and 32 of the Electoral Act as regards the timelines for submission of names and particulars of candidates sponsored by political parties at an election, the provisions of the Electoral Act shall prevail over the Regulations, Guidelines and Manuals. In other words such Regulations, Guidelines and Manuals are subordinate, subservient and inferior to the provisions of the Electoral Act.
Having found as above, it is my view that the provisions of the Electoral Act as regards the timeline of submission of names of candidates of political parties prevail over the requirements of the Guidelines, Regulations and Manuals made by the 1st Respondent (INEC). The learned trial Judge therefore erred when he held at pages 208 – 209 of the record of appeal that the 2nd Respondent failed to comply with the law regarding the timeline stipulated in the INEC Guidelines for the submission of the names and particulars of candidates sponsored by political parties.

In any case, the evidence on record shows that between the 14th – 17th of June, 2022 when the 2nd Respondent attempted to upload the name and particulars of the Appellant to the 1st Respondent’s Portal, there were still 250 days to the conduct of the general election. The suit subject of this appeal was filed 240 days to the conduct of the election on 25/2/2023. In the same token, on the 24/6/2022 when the 1st Respondent published the names and particulars of the candidates, there were 245 days to the conduct of the general election. Clearly therefore, the 1st Respondent (INEC) acted in breach of Sections 29(1) and 32(1) of the Electoral Act, in refusing to accept and publish the name of the Appellant as the candidate of the 2nd Respondent for the Kabba-Bunu/Ijumu Federal Constituency election of Kogi State. On that note, I hereby resolve the two (2) issues considered in this appeal in favor of the Appellant.

On the whole therefore, I hold that this appeal has merit. It is hereby allowed. Consequently, I hereby order that the judgment of the Federal High Court sitting in Lokoja delivered on the 8th day of September, 2022 in Suit No: FHC/LKJ/CS/35/2022 is hereby set aside. Accordingly, I hereby order as follows:
1. IT IS DECLARED that the Appellant having won the Primary Election conducted by the 2nd Respondent on the 27th day of May, 2022 for the seat of House of Representatives representing Kabba-Bunu/Ijumu Federal Constituency of Kogi State, toward the 2023 General Election, is and remains the duly elected candidate of the 2nd Respondent for the Kabba-Bunu/Ijumu Federal Constituency under the platform of the 2nd Respondent (All Progressives Congress).
2. IT IS ORDERED that the 1st Respondent (INEC) unconditionally accept and publish on their portal and any other reasonable channel, the name of Hon. Mathew Kolawole (Appellant) as the duly elected candidate of the 2nd Respondent sponsored for the seat of member representing Kabba-Bunu/Ijumu Federal Constituency of Kogi State towards the 2023 General Election.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft the leading judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA, which has just been delivered.

The facts of the matter are simple and straightforward and have been exhaustively redacted in the leading judgment. It would therefore be inutile to restate them.

The reasoning and conclusion in the leading judgment are in accord with my views and I agree with the indubitable conclusion in the leading judgment that where there is a conflict between the Guidelines issued by the 1st Respondent and the provisions of the Electoral Act, that the provisions of the Electoral Act shall prevail.
I was privileged to state the legal position recently in the case of INEC vs. PDP (2022) LPELR (57389) 1 at 50-53 as follows:
“By all odds, the Appellant’s Timetable has the force of law. It is made pursuant to Section 153 of the Electoral Act. It is however important to underscore that the said enabling provision on which the Appellant made the Timetable is made subject to the provisions of the Electoral Act… In as much as the Timetable has the force of law, can it override and supersede a stipulation in the principal enactment which it has been subjected to?
In NYESOM vs. PETERSIDE (2016) LPELR (40036) 1 at 63, the apex Court held that the directives, guidelines and manual issued by the Appellant cannot be elevated above the provisions of the Act. See also OKEREKE vs. UMAHI (2006) LPELR (40035) 1 and NKWONTA vs. INEC (2019) LPELR (49542) 1 at 40-43. The legal position was even more forcefully stated by Agim, JCA (Now JSC) in SATUMARI VS. NDUME (2019) LPELR (48875) 1 at 32. Hear His Lordship:
‘S. 153 of the Electoral Act that enables the 3rd Respondent to issue regulations, guidelines and manuals for elections states clearly that the issue of such regulations, guidelines and manuals is subject to the Electoral Act. Any instruction, guideline or procedure … that is contrary to the provision of the Act is illegal and void.’
See also SHELL NIGERIA EXPLORATION AND PRODUCTION CO., LTD vs. NOSDRA (2021) LPELR (53068) 1 at 41-43, DIN vs. A-G FEDERATION (1988) 4 NWLR (PT. 87) 147 and MOBIL PRODUCING (NIG) UNLTD vs. JOHNSON (2018) 14 NWLR (PT1633) 329.
It seems to me that irrespective of the fact that the Timetable has the force of law, it cannot supersede an express provision of the Electoral Act and where it conflicts with the stipulation in the Electoral Act, the Electoral Act provision which it is made subject to will take precedence. The phrase Subject to the provisions of this Act’ which is employed in Section 153 of the Electoral Act, 2010 (as amended), is an expression of limitation which shall govern, control and prevail over what follows in the section of the enactment. 

See TEXACO PANAMA INCORPORATION vs. SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIG. LTD (2002) LPELR (3146) 1 at 10-11, KAYCEE (NIG) LTD vs. PROMPT SHIPPING CORPORATION (1986) LPELR (1680) 1 at 14-15 and INEC vs. DPP (2014) LPELR (22809) 1 at 24. Concomitantly, the provisions of the Electoral Act, 2010 (as amended), [in the circumstances of this matter, particularly Section 35 thereof] will govern, control and prevail over the stipulations of the Timetable on the deadline for the withdrawal and substitution of candidates. The lower Court was therefore correct in its decision that the stipulations of the Timetable on the last date for withdrawal and substitution of candidates is in conflict with the time stated in Section 35 of the Electoral Act, 2010 (as amended) and that a regulation or guideline issued by the Appellant will not be valid if it subverts, undermines or disregards any provision of the Electoral Act, 2010 (as amended).”
See also INEC vs. PDP (2022) LPELR (57380) 1 at 51-54.
This remains the legal position as I know it. It is for the foregoing reason and the more elaborate reasoning and conclusion articulated in the leading judgment that I equally join in allowing the appeal and on the same terms as set out in the leading judgment.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA just delivered. The lead judgment has exhaustively resolved the main issue for determination succinctly. And looking at Grounds 1-6 of the Notice of Appeal from wherein the issue for determination of the Appellant is distilled from, by Section 29 of the Electoral Act, 2022 the submission of list of candidates and their particulars by political parties shall not be later than 180 days before the date appointed for the General Election under the Act. And by virtue of Section 32 (1) of Electoral Act, 2022, the 1st Respondent, (INEC) have 150 days before the Election, to publish at the relevant office or offices of the commission statement of the names and addresses of all candidates standing nominated.
The provision of Sections 29(1) and 32(1) of the Electoral Act, 2022 are not subject to Exhibits INEC 1 and 2, that is the 1st Respondent’s Guideline made pursuant to S.148 of the Electoral Act, 2022 that empowers the 1st Respondent to make regulations, guideline and or manuals. Indeed S.148 of the Act says:- “The commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration.”
Thus, in interpreting provisions of statutes, where the expression “subject to” is used, as done in Section 148, its effect is that of assigning subordinate position to a clause or other enactment. In this case, Section 148 is subject to Section 29(1) and 32 (1) of the Electoral Act, 2022 and hence the 1st Respondent’s Exhibits INEC 1 and 2 cannot override the clear provision of Sections 29(1) and 32(1) of the Electoral Act, 2022. See ATT. GENERAL OF OGUN STATE v. AGF (2002) LPELR 621 (SC) and OLORUNTOBA-OJUA & ORS V ABDULRAHEEM & ORS, (2009)13 NWLR (pt 1157)83.

Having said the above, I am in total agreement with the reasoning and finding including consequential orders made in the lead judgment and I adopt same as mine and I hold the view that this appeal is meritorious and it is allowed by me as well.

The judgment of the Federal High Court sitting in Lokoja, Kogi State in Suit No. FHC/LKJ/CS/35/2022 delivered on 8th September, 2022 is hereby set aside.

Appearances:

Abdulwahab Muhammed, SAN with him, S. A. Abbas, Esq. and A. M. Adoji, Esq. For Appellant(s)

I. S. Mohammed, Esq. for the 1st Respondent.

Ahmed Raji, SAN and J. J. Usman, SAN with him, Funsho Boluroni, Esq. and
Zekeri Garuba, Esq. for the 2nd Respondent. For Respondent(s)