SENATOR MUSTAPHA SANI MOHAMMED v. ALL PROGRESSIVE CONGRESS & ORS
(2019)LCN/13521(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of June, 2019
CA/A/373/2019
RATIO
APPEAL: WHEN A PARTY CANNOT INSIST THAT ONLY HIS ORIGINATING PROCESSES SHOULD BE CONSIDERED IN THE DETERMINATION OF HIS PRELIMINARY OBJECTION
Therefore he cannot in this appeal insist that only the Originating processes should be considered to determine the preliminary objection. In UBN PLC V. PAUL IKWEN (1998) this Court held that the party who relied on affidavit evidence in support of his demurrer, cannot validly contend that only the writ of summons and statement of claim and not the said affidavit and supporting documents should be considered to determine the demurrer.
It would amount to unfair adjudication to ignore the affidavit evidence both sides relied on their arguments concerning the objection and rely only on the Originating Process to determine the objection. It is obvious from the affidavits filed in respect of the preliminary objections and the totality of the affidavits filed by the appellant in support of the Originating process, that the case presented by the appellant in his Originating Summons does not disclose the real issue in dispute and avoids being caught by S.285(9) of the 1999 Constitution as amended by 4th Alteration. It is the appellant’s further affidavits in response to the counter affidavits in opposition to the Originating Summons that exposed the real issue in dispute as – who won the primary election of 2-10-2018 and not the failure to submit the appellant’s name as the 1st respondent’s candidate for the election.PER EMMANUEL AKOMAYE AGIM, J.C.A.
THE JUDGE OF A COURT MUST DEMONSTRATE A FULL, DISPASSIONATE CONSIDERATION OF THE ISSUES RAISED BEFORE IT
The Judge of a Court must demonstrate a full, dispassionate consideration of the issues raised and canvassed before it. Failure of the Court to do this will lead to a dent in the case of an appeal, which when resolved one way or the other, will affect the result of the case or an appeal.” See Brawal Shipping Nig. Ltd v. F.I. Onwadike Co. Ltd & Anor (2000) 6 SC (Pt 11) 33 and Elelu Habeeb & Anor v. A-G Federation & Ors (2012) LPELR.PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
SENATOR MUSTAPHA SANI MOHAMMED Appellant(s)
AND
1. ALL PROGRESSIVE CONGRESS (APC)
2. BIMA MOHAMMED ENAGI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/373/2019 was commenced on 23-4-2019 when the appellant herein filed an appeal against the judgment of the Federal High Court at Abuja in Suit No. FHC/ABJ/CS/21/2018 by A.B. Aliyu J. The notice of appeal contains 8 grounds of appeal.
Both sides filed their respective briefs as follows- appellants’ briefs and respondents’ briefs.
The appellant, 1st and 2nd respondents filed, exchanged and adopted their respective briefs as follows- Appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief and appellant’s reply brief.
The appellant?s brief raised the following issues for determination-
1. Whether the learned trial Judge was correct in law in view of the affidavit and documentary evidence of the Appellant in support of his (Appellant) Originating Summons before the trial Court, to hold that the Appellant’s suit by virtue of Section 285(9) of the Constitution 1999 (as amended) was statute barred, unconstitutional, null and void? Please see grounds 1, 2 and 3 of the grounds of Appeal.
2. Whether the learned trial Judge
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was correct in law in the circumstances of the Appellant’s case to have failed to consider and judicially determine the legal effect of the Appellant’s averments as contained in paragraphs 2.4 (i), (ii), (iii), (iv), (v) and (vi), 2.5, 2.6 and 2.7 of the Plaintiff (Appellant)’s Further Affidavit in Support of his (Appellant) Originating Summons which averments showed that the primary election of the 2nd October, 2018 conducted for the selection of the 1st Respondent’s candidate for the Niger South Senatorial District General Election 2019 which primary election the trial Judge held as the cause of action, was in fact, cancelled by the National Working Committee of the 1st Respondent? Please see ground 4 of the Notice of Appeal.
iv. Dr. Mohammed Santuraki
v. Mustapha Sani Mohammed (the Plaintiff/Respondent) 1,824
vi. Bola Farouk
vii. Engr. Adamu Alufa Abu and
viii. Paul Tsado Tswanyan
12.That after the announcement and declaration of 2nd Defendant/Applicant’s victory by the Niger State Governorship and National Assembly Primary Election Committee on the 4th of October 2018, the Plaintiff/Respondent together with other two seating and serving Senators protested against the 2nd Defendant/applicant’s victory in the primaries and make newspaper publication which is captured as “APC risks losing Niger, defeated senator warn”. That the certified true copy of the said newspaper publication from national library by Jummai Bulus Principal Liberia both the front page of the said newspaper, overleaf of the said front pages where the name of the certified officer, amount paid, official title and date appeared are hereby attached and marked as exhibit BME1 and BME2 respectively.
13.That the said exhibit above i.e (Punch Newspaper of 7th October,
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2018 reported the news of the loss of the Plaintiff/Respondent in the Niger South Senatorial Primary election and his dissatisfaction of the outcome of the primary exercise.
14.That in the said exhibit the plaintiff/respondent was quoted to have said- “This is not an election but selection; it is a disgrace to the APC part. The outcome must not be allowed to stand if the party must thrive in 2019 general election.”
15.That this statement was made on the 7th October, 2018 the plaintiff/respondent haven’t being aware of the outcome of the primary conducted by the 1st defendant/respondent on the 2nd day of October 2018.
16.That the days from 7th October, 2018 when the plaintiff/respondent reacted to the outcome of the primary election conducted by the 1st defendant/respondent observed, monitored and supervise by the 3rd Defendant/ respondent to 30th October, 2018 when the Plaintiff/Respondent has filed his suit is 23rd to 24th days.
17.That the days from 7th October, 2018 when the Plaintiff/respondent reacted to the outcome of the primary election conducted by the 1st defendant/respondent observed,
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monitored and supervise by the 3rd defendant/respondent, to 30th October, 2018 when the plaintiff/respondent has filed his suit is 23rd to 24th days which is over and above 14 days.
18.That similarly, Thisday Newspaper of 8th October, 2018 edition reported the news of the emergence of the victory of 2nd defendant/applicant as the winner of the Niger South Senatorial Primary election with 24,415 votes to which it was reported in the same news reported that the Plaintiff/Respondent came a distant fourth with 1,824. A copy of the said newspaper, overleaf of the said front page, the front page of page 7 and the overleaf of the said front pages where the name of the certified officer, amount paid, official title and date appeared are hereby attached and marked as exhibit BME 3 and BME 4 respectively.”
The appellant’s counter affidavit filed on 2-1-2018 in opposition to the said 2nd respondent’s notice of preliminary objection deposes in paragraph 3 therein thusly-
“3. That I was informed of the following facts by my Principal in Chambers, S.I. Ameh, SAN on the 29th day of November, 2018 at our office at No. 21 Onitsha Crescent, Off Gimbiya Street,
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Area 11 Garki, Abuja, at about 11. 50 am in the forenoon, which I verily belief him to be true and correct, viz:-
a. That the Defendant/Appellant has filed a notice of Preliminary objection dated 27th day of November, 2018 alleging that the Plaintiff/Respondent’s substantive Suit No.: FHC/ABJ/CS/1249/ 2018 was statute barred and that the Honourable Court lacks the jurisdiction to entertain the matter.
b. That the depositions in paragraphs 3c, e, f, g, h, i and j of the 2nd Defendant’s/Applicant’s Affidavit in support of his preliminary objection, are not only false but a complete misrepresentation of the facts and circumstances referred thereto.
c. That contrary to 3c, e, f, g, h, I and j of the 2nd Defendant’s/Applicant’s Affidavit in support of his preliminary Objection, the cause of action in this suit arose on the 18th day of October, 2018 when rather than submit the name of the Plaintiff/Respondent who won the Primary Election, the 1st Defendant submitting the names of its nominated candidates to the 3rd Defendant/Respondent for the 2019 Senatorial District Election in INEC Form CF002C (ii) which herein attached and
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marked as Exhibit “SEN1”.
d. That furthermore, the newspaper publications (exhibits BME1 and BME2) are sponsored documents orchestrated by the 2nd Defendant/Applicant and are not attributable to the Plaintiff/Respondent.
e. The said documents (EXHIBITS BME1 and BME2) were not in any way referred to in the Plaintiff’s Originating Summons.
f. That the submission of Form CF002C (ii) to the 3rd Defendant/Respondent was certainly the complete stage of the processes of nomination of Candidates of the 1st Defendant/Respondent for the 2019 Senatorial Districts Elections in Niger State where the name of the Plaintiff/Respondent was conspicuously erroneously omitted on the list of Senatorial Candidates submitted to the 3rd Defendant/Respondent on the 18th October, 2018.
g. That contrary to paragraphs 4, 5, 6, 7, 8,9, 10, 11, 12,13, 14, 15, 16, 17, 18, 19, 20 and 21 of the 2nd Defendant/Applicant’s Affidavit in Support of the Preliminary Objection, the Plaintiff/Respondent was the winner of the Senatorial Primaries of the 1st Defendant/Respondent conducted on the 2nd October, 2018 even though the said primary election was later
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allegedly cancelled by the 1st Defendant on the 3rd day of October, 2018.
h. That the 1st Defendant/Respondent shortly after the purported cancellation of the Senatorial Primaries held on the 2nd Day of October, 2018 conducted screening of the aspirants to determine those to be cleared to participate n the Final Senatorial Primaries reschedule for the 5th day of October, 2018. The list of candidates cleared for the Senatorial Primaries in Niger State by the National Working Committee of the 1st Defendant/Respondent is hereby attached and marked as Exhibit “SEN 2”
i. That the reschedule primary election which later held on the 5th day of October, 2018 produced the plaintiff/Respondent as the candidate of the 1st Defendant for the 2019 Niger South Senatorial District Election.
j. That with the alleged cancellation of the initial primaries and subsequent clearance as indicated in Exh. SEN 2 the Plaintiff/Respondent, SEN. Mustapha Sani Mohammed (NIGER SOUTH DISTRICT) alongside two other Senators From Niger State namely Sen, David Umar (NIGER EAST DISTRICT) and Sen. Dr. A.S. Abdullahi (NIGER NORTH DISTRICT) were the only aspirants
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cleared by the 1st Defendant/Respondent to contest the Senatorial Primary Election rescheduled and held on the 5th day of October, 2018.
k. That after the Primary Election of 5th day of October, 2018, the Plaintiff/Respondent for the Niger South Senatorial District Election scheduled to hold in 2019 and he remained the candidate of the 1st Defendant/Respondent until his name was surreptitiously and erroneously omitted in Form CF002 C (ii) submitted to the 3rd Defendant/Applicant on the 18th day of October, 2018.
I. That the 1st Defendant/Respondent ought to submit the name of the Plaintiff/Respondent to the 3rd Defendant/Respondent as the candidate to represent the 1st Defendant/Applicant in the Niger South Senatorial District Election to be held in 2019.
m. That the 1st Defendant/Respondent on the 18th day of October, 2018 rather erroneously submitted the name of the 2nd Defendant/Applicant to the 3rd Defendant/Respondent in place of the Plaintiff/ Respondent.
n. That the Plaintiff/Respondent aggrieved by the action of the 1st Defendant/Respondent which occurred on the 18th day of October, 2018 filed the present suit on
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the 30th day of October, 2018 challenging the wrongful act of the 1st Defendant/Respondent in omitting the Plaintiff/Respondent name on Form CF002 C(ii)
o. That the instant suit was filed only after the 1st Respondent had failed to respond to the Plaintiff’s letter of Appeal to include and reflect the name of the Plaintiff/Respondent, Sen. Mustapha Sani Mohammed, as the authentic candidate and flag bearer of the 1st Defendant/Respondent for the forthcoming 2019 Senatorial Election in the Niger South Senatorial District of Niger State. The letter dated 22nd October, 2018 and received at the Office of the National Chairman of the 1st Defendant/Respondent is hereby attached and marked Exh. SEN 3.
p. That Paragraphs 3 and 4 of page 2 of Exh. SEN 3 also contain the cause of action leading to the substantive suit thus:
“However, in the list submitted to the Independent National Electoral Commission (INEC) in form CF002 C (ii) meant to be the names of the APC Candidates nominated for the Senatorial Elections in Niger State, while the names of the other two Senators also cleared unopposed beside our Client were
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retained, our Client’s name was erroneously missing.
Our Client is dissatisfied with this development and act of omission and non inclusion and non-reflection of his name on the list submitted to INEC by the APC hence this Appeal to enable your office act in conjunction with National Working Committee and the NEC to reach out to INEC immediately and regularize and include his name on the list as the authentic Candidate for the Niger South Senatorial District in the 2019 general election”.
q. That the submission of the list of Senatorial Candidates to INEC (3rd Defendant/Respondent) by the APC (1st Defendant/Respondent) whereof the complained at of omission, non-inclusion and non-reflection of plaintiff’s/Respondent’s name happened on the 18th day of Oct., 2018.
r. That the Plaintiff/Respondent has properly brought this action within 14 days of consummation of the cause of action; being that from the 18th Day of October, 2018 to the 30th day of October, 2018 is just twelve (12) days, remaining two clear days to the lapse of the statutory time.
s. That the present suit is not caught up by the time limited by the 4th alteration of the 1999
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Constitution of the Federal Republic of Nigeria for commencing a pre-election matter.
t. That it is in the interest of justice to dismiss this preliminary objection.”
Paragraphs 5 to 12 of the affidavit in support of the 1st respondent’s preliminary objection to suit on ground inter alia that it is statute barred filed on 15-1-2019 reads thusly –
“5. I know as a fact that the 1st defendant conducted its primary for Niger South Senatorial District of Niger State on 2 October 2018 and the Plaintiff participated in the said primary wherein he was defeated by the 2nd Defendant.
6. I am aware that by Sunday Punch Newspaper dated 7 October 2018, the Plaintiff was reported to have said “what transpired in the Senatorial Primary is worse than corruption. It is a disaster of the highest order that will take us nowhere, politically. This is not an election but selection; it is a disgrace to APC as a Party. The outcome must not be allowed to stand if the Party must thrive in the 2019 general election”.
Herein annexed and marked as Exhibit A is the copy of the Sunday Punch dated 7 October 2018.
7. I am aware that by law
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every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained in the suit.
8. I know as a fact that the event, decision or action complained of in this suit by the Plaintiff occurred on 2 October 2018 to the knowledge of the Plaintiff.
9. The instant suit was filed on 30 October 2018, 29 days after the occurrence of the event being complained of by the Plaintiff in this suit.
10. I know as a fact that the instant is statute barred.
11. I know as a fact that the instant suit is complaining about the 1st Defendant primary election held on 2 October 2018 and a second primary allegedly held on 5 October 2018 both meant to produce the candidate of 1st Defendant for the Niger South Senatorial District in the forthcoming general election fixed for February, 2019.
12. This Court lacks the jurisdiction to entertain this suit.”
It is glaring from the affidavits and counter affidavits filed by all sides in support or in opposition to the objections, that the affidavits were irreconcilably in conflict on two facts, that is, was the
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primary election of 2-10-2018 cancelled, if not, who, between the appellant and the 2nd respondent won the said primary elections of 2-10-2018. These were the factual issues the parties by their affidavits invoked the jurisdiction of the trial Court to determine so as to find out if the suit was statute barred. These were the facts the
competently contend to the contrary in this appeal that the issue in controversy is whether it is the appellant’s name and not that of the 2nd respondent that should have been submitted to the 3rd respondent as the 1st respondent’s candidate for the election. See Iyoho v. Effiong (2007) 4 SC (Pt iii) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.
So the argument of the appellant that the cause of action arose on 18-10-2018 when he became aware that it is the 2nd respondent’s name and not his that was submitted by the 1st respondent to the 3rd respondent as its candidate for the said general election is invalid and incompetent.
?The practice that is now becoming prevalent in pre-election matters, following the Fourth Alteration of the 1999 Constitution, is that plaintiffs upon realizing that they have not been able to bring a pre-election case within 14 days as required by S.285(9) of the 1999 Constitution as amended, resort to framing their case in such a manner as to give the impression that their complain is not about the outcome of the primary elections, alleging that they won the elections, that their complain is against the submission of the name of a
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person who lost the primary election or did not even participate in it, to the independent National Electoral Commission as the candidate of the political party for the relevant election. By so doing, the cause of action would be said to have occurred not on the date of the primary election but on the subsequent date when he became aware that some other person’s name has been submitted by his political party as the candidate of his party instead of his own name as the winner of the election.
Experience has shown that such cases as framed misrepresent the issue in dispute and the date the true cause of action accrued. On the general principle that it is the Originating Process that must be considered to determine if an action is statute barred, the Courts restrain themselves from considering the processes filed by the defendant in response to the Originating Process, even when the objection was determined by the trial Court in its final judgment after conclusion of evidence. The Courts ignore other evidence in the case that disclose the actual cause of action and pretend that it does not exist. This in my view violates the fundamental principle of fair
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hearing that requires the Court to consider all the evidence before it in its final judgment or to consider all the evidence on a point in determining that point.
The experience has shown that after the Court has decided that the cause of action is not the pre-election or its result but a subsequent event, during trial the Courts ends up with one question for determination, who won the primary election. The Court then finds out that the cause of the action is the election or its result and not the submission of the name of the purported winner of the primary election as the candidate of the political party for the general election. Judicialsm should respond to this reality so that S.285(9) of the 1999 Constitution is not defeated.
The appellant on 8-2-2019 filed a counter affidavit in opposition to the 1st respondent’s notice of preliminary objection containing depositions similar to its counter affidavit in opposition to the 2nd respondent’s objection.
Also where the objection is considered and determined after the conclusion of evidence by both sides, then the Court cannot ignore the evidence before it and pretend it does not exist and
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determine the objection only on the basis of the originating processes. At that stage, all the processes and evidence before the Court must be considered, especially where the objection is determined as part of the final judgment in the case, as has happened in this case. In Egbe v Adefarasin (supra) Supreme Court held that. ” where the defendant has raised an unanswerable plea of protection under the Public Offers Laws on the incontestable fact as the Respondent has done in this case, there is absolutely no basis for prying into the conduct of such a defendant which gave rise to the action. The Court of Appeal need not have gone into the question of whether malice was a relevant consideration in determining the liability of the 2nd Respondent. The issue before Court was whether the action was maintainable. It is not whether the 2nd Respondent was liable”. But the same Supreme Court has in many cases held that if the objection is determine after conclusion of evidence the Court can on the evidence before it consider the legality, propriety or bona fide of the act complained about to find if it would be in the interest of justice to allow it protection by the
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statute of limitation. See for example, Nwankere V Adewunmi(1967) NMLR 45 at 48, Ekeogu V Aliri (supra), Ibrahim V Judicial Committee(supra). In Egbe v Alhaji the Supreme Court considered if there was conflict between its earlier decision in Nwankere v Adewunmi and its later decision in Egbe V Adefarasin and held that there is no conflict as the facts of the two cases are different in that in Nwankere the application of the Act was considered on the basis of the issues joined in the pleadings and the evidence in the case, while in Egbe v Adefarasin it was considered in limine on the basis of the statement of claim only. The Supreme Court then held that if it is determined in limine, the trial Court can only consider if the action is maintainable and cannot consider if the act or default sought to be protected was done bona fide or in pursuit of inordinate motives. It held that if it is considered after evidence has been elicited then the Court would examine the evidence to find out if the act sought to be protected was carried out in bad faith or maliciously or for an illegal purpose. The exact holding of the Supreme Court reads thusly-
“In a civil
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action, where the defendant invokes, in limine, the procedure under Order 22 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules. Cap.52, to claim protection under Section 2(a) of the Public Officers Protection Law. Cap.114 which is, indeed a defence by way of limitation of action; it is, as laid down in Fred Egbe v Justice Adefarasin & Anor (supra). Not proper for the trial Court to infer or conclude from the pleadings that the protection afforded the defendant by the law has been vitiated by malice or bad faith. For what the trial Court is obliged to decide at that stage is whether the action is maintainable and not whether the defendant is liable. The proof of liability can only come about after evidence in support of the pleadings has been adduced by the parties or the plaintiff, as the case may be. The defendant has of course, the burden to show, at the time of making the application under Order 22 Rule 4, that the cause of action arose from or the act complained of was carried out, in the course of performance of his duty and that the action was not instituted before the expiration of the three months prescribed by the Public Officers
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Protection Law. In my opinion, when a defendant appears to be acting as a member of a public body under statutory authority and pleads the Public Authorities Protection Act, the plaintiff can defeat that claim by proving on sufficient evidence that the defendant was not really intending to act in pursuance of the statutory authority, but was using his pretended authority for some improper motive, such as spite, or a purpose entirely outside statutory justification. When defendants are found purporting to execute a statute, the burden of proof in my opinion is on the plaintiffs to prove the existence of the dishonest motives above described and the absence of any honest desire to execute the statute, and such existence and absence should only be found on strong and cogent evidence.”
?The affidavit and further affidavit in support of the originating summons contain depositions similar to those in his counter affidavit in opposition to the objections by the respondents. The depositions in respondent’s counter affidavit and further counter affidavit in opposition to the Originating Summons are the same with those in their affidavits in support of their
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Originating Summons.
In the light of the foregoing issue No. 1 is resolved in favour of the respondents.
Let me now consider issues Nos. 2 and 6 together.
I have carefully read and considered all the arguments under this issue.
The submission of Learned Counsel for the appellant that the primary election of the 1st respondent’s candidate for the election of Senator for Niger South Senatorial District, which primary election held on 2-10-2018 was cancelled by the National Working Committee of the 1st respondent and that following the cancellation, he was on 5-10-2018 confirmed as the 1st respondent’s candidate for election of Senator for Niger South Senatorial District contradict his submission under issue No. 1 that having polled the highest number of votes cast in the primary election of 2-10-2018 and declared the winner, he was confirmed and returned as the sole candidate of the 1st respondent for the relevant election.
Learned Counsel for the appellant had submitted thusly- “My Lords, it has been an age long un-altered principle of law that a Court in the determination of a dispute between parties must read the entire pleadings and
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in this case that was commenced via the originating summons platform, the affidavit evidence of the plaintiff. in this case, the learned trial Judge failed to consider and judicially determine paragraphs 2.4 (i), (ii), (iii), (iv), (v) and (vi), 2.5, 2.6 and 2.7 of the Plaintiff (Appellant) ‘s Further Affidavit in Support of his (Appellant) Originating Summons which averments cumulatively and conclusively showed that the primary election of the 2nd October, 2018 conducted for the selection of the 1st Respondent’s candidate for the Niger South Senatorial District General Election 2019 which primary election the trial Judge held as the cause of action, was in fact, cancelled by the National Working Committee of the 1st Respondent, that consequent upon the cancellation of the primary election and the holding of the Special Congresses on the 5th October, 2018, in the three (3) Senatorial Districts of Niger state that herald the issuance of Exhibits MSM 12 (a), MSM 12 (b) and MSM 12 (c) annexed to the Further Affidavit in Support of the Originating Summons found at pages 834, 835 and 836 respectively of the Record of Appeal Vol. 2; and in compliance with
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Section 87(6) of the Electoral Act, the names of Senator Aliyu Sabi Abdullahi and Senator David Umaru were submitted via Exhibit MSM 11 to the 3rd Respondent by the 1st Respondent as the 1st Respondent candidates for their various Senatorial Districts to wit, Niger North and Niger East respectively.
Paragraphs 2.4(i), (v), 2.6 and 2.9 of the further affidavit in support of the Originating Summons depose that-
“2.4 That against the depositions in paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the 1st Defendant’s Counter Affidavit further state as follows:
i. That the Senatorial Primary Election of the 1st Defendant in the Niger South Senatorial District of the 2nd day of October, 2018 which I overwhelming won was cancelled by the National Working Committee of the 1st Defendant. a certified true copy of the Extract of the decision of the National Working Committee of the 1st Defendant cancelling the Senatorial primaries of the 2nd October, 2018 is hereby attached as Exhibit MSM 9(a).
ii. That it was sequel to the cancellation of the senatorial primary election conducted on the 2nd October, 2018 that the 1st Defendant officially made the
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publication by tweet. Attached to the Plaintiff’s main affidavit as Exhibit MSM9 which can be seen at officialapcng.com, being a portal at public domain.
iv. That the Certified true copy of the earlier attached fresh list of candidates cleared by the 1st Defendant for the Senatorial Primary Election schedule for the 5th day of October, 2018 is hereby attached as Exhibit MSM 10(a).
v. That I was the candidate and the winner of the aforementioned primary election of the 5th October 2018 for the Niger South Senatorial District like the two other Senators from other Senatorial District of Niger State who also won as candidates in their respective Senatorial Districts in Niger State, yet my name was omitted by the 1st Defendant in Form CF002C (ii) shown to have been submitted to the 3rd Defendant on the 18th day of October, 2018.
2.6. That in further reply to paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35 of the 1st Defendant’s Counter Affidavit, the figures presented thereat as the individual and collective or summary results of the Primaries do not represent the true figures in the cancelled Senatorial Primaries conducted in the Niger
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South Senatorial District on the 2/10/18. The Certified True Copy of the cancelled primaries of 2/10/18 is hereby further attached as Exhibit MSM 11 (b).
2.9. That in reply to paragraphs 41, 42, 43, 44 and 45 of the 1st Defendant’s Counter Affidavit the Plaintiff maintains that the Senatorial Primary Election of the 2nd October, 2018 though won by me was declared cancelled by the 1st Defendant hence the primaries of the 5/10/2018.”
But paragraphs 16, 18 to 28 of the affidavit in support of the Originating Summons had deposed that-
“16. That very early on 2nd October, 2018, National Assembly Primaries commenced in the three (3) Senatorial Districts of Niger State under the supervision of the Mr. Imasuen led committee and closely monitoring of officials of the 3rd Defendant and that by 10.15am accreditation of members of the Party was under way in the three zones.
17. That in the primaries held in my Senatorial District, i.e Zone A, the following persons contested:
1. Mustapha Sani Mohammed (my humble self)
2. Bima Mohammed Enagi (the 2nd Defendant)
3. Abdulmalik Cheche
4. Abdul Ibrahim Ebbo
5.
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Engr. Adamu Alfa Abu
6. Paul Tsado Tswanyan
7. Bala Faruk and
8. Dr. Mohammed Santuraki
18. That I know that at the completion of accreditation, the primaries in and for my Senatorial District held peacefully, rancour-free as everything went well.
19. That at the conclusion of the electioneering process, the results of the primaries in and my Senatorial District were announced/declared for all the contestants as follows:
a) Mustapha Sani Mohammed (myself) – 15337
b) Bima Mohammed Enagi (the 2nd Defendant)- 5041
c) Abdulmalik Cheche – 6469
d) Abdul Ibrahim Ebbo – 3685
e) Engr. Adamu Alfa Abu – 1524
f) Paul Tsado Tswanyan – 940
g) Bala Faruk – 807
h) Dr. Mohammed Santuraki -1173
Attached hereto is the Result Sheet in respect of the primaries in my Senatorial District and the same is attached and marked as Exhibit MSM 7.
20. That following the announcement of the results of the primaries, I was declared winner by the Electoral Committee.
21. That I know as a
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fact that whereas the primaries in Niger South Senatorial District (Zone A) was conclusive and I emerged victorious thereat, the primaries in Niger East (Zone B) and Niger North (Zone C) were reported to be marred by serious irregularities/malpractices and violence.
22. That as a result of the violence and irregularities witnessed in and during the conduct of the National Assembly Primaries, the National Assembly Primaries, the National Working Committee (NWC) of the 1st Defendant declared the primaries in the two (2) affected zones B and C inconclusive and resolved to and indeed cancelled or annulled the processes in the affected Zones and fixed 5th of October 2018 for fresh primaries to be conducted in those zones.
23. That however, following my success at the primaries held in and for the Niger South Senatorial District (Zone A), the 1st Defendant issued to me the Nomination Form as the duly elected candidate of the party for the 2019 general election.
24. That upon receipt of the said Nomination Form, I was informed at the offices of the 1st Defendant that the National Working Committee was yet to make its final position on
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the Election in Zone B and C of the Niger State Senatorial District Election of the 1st Defendant.
25. That I could not submit the said completed Nomination Form, I was informed at the offices of the 1st Defendant that the National Working Committee was yet to make its final position on the Election in Zone B and C of the Niger State Senatorial District Election of the 1st Defendant.
26. That in spite of all these, in addition to the Plaintiff’s victory at the Primaries the leadership of the 1st Defendant, particularly, its National Working Committee (NWC), whose committee had conducted, supervised and declared the results of the primary election which I won on 2nd October 2018, decided to clear me and Senators David Umaru and Dr. Aliyu Sabi Abdullahi, being current senators in the Senate representing the Niger South, Niger East and Niger North Senatorial Districts respectively as its candidates for the general election slated for 2019 and indeed on the 5th October 2018 our candidacy was affirmed/ratified at a special convention/congress.
27. That pursuant to the decision of the 1st Defendant
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to grant us candidacies, both the 1st Defendant and the National Assembly of Nigeria tweeted/published/posted on their Tweeter handles, i.e. @officialapcng.com and @nassnigeria respectively tweets regarding the clearance of myself Senators David Umaru and Dr. Aliyu Sabi Abdullahi for the 5th October 2018 congress. A copy of the Tweets in this regard is attached herewith and marked as Exhibit MSM 9.
28. That in addition to the aforesaid tweets, the National Chairman of the 1st Defendant, His Excellency Comrade Adams Aliyu Oshiomhole issued and signed a list of the cleared Senators for the three Senatorial Districts of Niger State dated 4/10/2018 and my name conspicuously appeared on the said list as cleared. A copy of the list is attached hereto and marked as exhibit MSM 10.
?
The depositions in the two sets of affidavit in support of the Originating Summons irreconcilably contradict each other on
i. Which primary election did the appellant win, is it the one of 2-10-2018 or that of 5-10-2018?
ii. Did the 1st respondent cancel the primary election of 2-10-2015?
iii. Did it hold another primary election on 5-10-2018?<br< p=””
</br<
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iv. Was the selection process of 5-10-2018, in which only the appellant participated, a primary election or a mere confirmation of the appellant as the 1st respondents candidate?
The issues thrown for determination by the state of the affidavits in support of the Originating Summons and Questions 1 and 4 therein are as follows-
1. Who won the primary election of 2-10-2018?
2. Whether the primary election of 2-10-2018 held was concluded and produced a winner?
3. Whether the 1st respondent can cancel or nullify its primary election that has produced a winner?
4. Which committee of the 1st respondent conducted the primary election of 5-10-2018 and what are the details of the result?
?
The deposition in the further affidavit that the primary election of 2-10-2018 was cancelled and a primary election held on 5-10-2018 which only the appellant contested as a sole candidate defeats the case of the appellant in the affidavit in support of the Originating Summons that he won the 2-10-2018 primary election and so was entitled to have his name submitted to the 3rd respondent as the 1st respondent’s candidate. It also defeats
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all the principal reliefs claimed for on the basis that the appellant won the primary election of 2-10-2018. The reliefs are as follows-
1. A DECLARATION that having regard to the mandatory provisions of Section 87(1), (2), (3), (4)(c)(i) and (ii) and (7) of the Electoral Act 2010 (as amended), relevant provisions of the 1st Defendant’s Constitution 2014 (as amended) and extant Electoral Guidelines and the content of the ALL PROGRESSIVES CONGRESS SUMMARY RESULT SHEET FOR SENATE PRIMARY ELECTION dated 02/10/2018 and issued and duly signed by the Electoral Committee set up by the 1st Defendant to conduct the National Assembly Primary election held on 2nd October 2018 in Niger South Senatorial District of Niger State, the said primary election was concluded and conclusive for all intents and purposes.
2. A DECLARATION that in view of the conclusiveness of the National Assembly Primary election held on 2nd October 2018 in Niger South Senatorial District of Niger State and conducted by the 1st Defendant and by virtue of Section 87(1), (2), (3), (4)(c) (i) and (ii) and (7) of the Electoral Act 2010 (as amended), relevant provisions of the 1st Defendant’s
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Constitution 2014 (as amended) and extant Electoral Guidelines as well as the content of the ALL PROGRESSIVES CONGRESS SUMMARY RESULT SHEET FOR SENATE PRIMARY ELECTION dated 02/10/2018 and issued and signed by the 1st Defendant’s Electoral Committee, the 1st Defendant was duty bound to abide by the outcome of the primary election and forward the name of the winner thereof to the 3rd Defendant as its candidate for the 2019 general election for the seat of Senator representing Niger South Senatorial District of Niger State.
3. A DECLARATION that the Plaintiff, having polled the highest number of votes cast and was accordingly declared winner at the National Assembly Primary Election conducted by the 1st Defendant and which held on 2nd October 2018 in Niger South Senatorial District of Niger State, indeed and as a matter of fact won the said primary election and ought to have been nominated by the 1st Defendant and presented on the 18th day of October, 2018 to the 3rd Defendant as its candidate for the 2019 general election for the seat of Senator representing Niger South Senatorial District of Niger State.
4. A
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DECLARATION that the 1st Defendant cannot impose the 2nd Defendant who came third (3rd) at the National Assembly Primary election conducted by the 1st Defendant on 2nd October 2018 in the Niger South Senatorial District of Niger State as the Senatorial Candidate of the party for Niger South Senatorial District of Niger State and or nominate him on the 18th day of October, 2018 to the 3rd Defendant as its candidate in the 2019 general election for the seat of Senator representing Niger South Senatorial District of Niger State.
5. A DECLARATION that pursuant to Section 31(1) and (2) of the Electoral Act 2010 (as amended), the 1st Defendant could not validly choose and submit the name of the 2nd Defendant who came third at the National Assembly Primary election conducted by the 1st Defendant on 2nd October 2018 in Niger South Senatorial District of Niger State, as its Senatorial candidate to the 3rd Defendant on the 18th day of October, 2018 as his purported nomination is in clear violation of the mandatory provisions of Section 87 (1), (2), (3) 4 (c) (i) and (ii), and (7) of the Electoral Act 2010 (as amended) and relevant provisions of the 1st Defendant’s
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Constitution 2014 (as amended) and extant Electoral Guidelines as well.”
It is clear from Questions 1 and 4 of the Originating Summons that the appellant also complained about or questioned the cancellation of the 2-10-2018 primary election by the 1st respondent.
It is obvious that the trial Court failed to consider and determine the legal effect of the depositions in the further affidavit in support of the Originating Summons which averments show that the primary election of the 2-10-2018 was cancelled. This error did not occasion any miscarriage of justice against the appellant because it is glaring that if the trial Court had considered the said depositions in the further affidavit, its decision would have remained the same or the suit would have been dismissed.
In the light of the foregoing, I resolve issues Nos. 2 and 6 in favour of the respondents.
Let me now determine issues Nos. 3, 4 and 5 together.
I have carefully read and considered the arguments of all sides on these issues.
The trial Court that had decided to determine the preliminary objections to its jurisdiction along with the merit of the suit in its final
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judgment, refused to determine the merit of the suit after upholding the objection that it lacks jurisdiction to entertain and determine the suit on the ground that the said issues raised for the determination of the merit of the suit had thereby become academic. The decisions of the Supreme Court on whether a Court should not border to determine the merit of a case or other issues thereon once it finds that it has no jurisdiction to entertain it, are polarised into two fronts, one group support what the trial Court did in this case.
The second group maintains that even though the trial or penultimate Court’s determination of one amongst several issues has disposed of the entire suit, it should still go ahead to determine the other issues in the case, so that if the appeal against that issue succeeds, the appellate court would be in a position to review the lower Court’s decision on the other points instead of remitting the case back for the retrial of those other issues. See Petroleum Ltd & Anor v. UBA Plc & Ors (2010) 6 NWLR 530 at 53, in which the Supreme Court held that “a Court has a statutory duty to consider and make pronouncement upon
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all issues raised by the parties and not to confine itself only to issues which it considers to dispense of the case. This is only reasonable in order to obviate the danger of a higher Court holding a contrary view on the materiality of the issues (as was tempted to do). The Judge of a Court must demonstrate a full, dispassionate consideration of the issues raised and canvassed before it. Failure of the Court to do this will lead to a dent in the case of an appeal, which when resolved one way or the other, will affect the result of the case or an appeal.” See Brawal Shipping Nig. Ltd v. F.I. Onwadike Co. Ltd & Anor (2000) 6 SC (Pt 11) 33 and Elelu Habeeb & Anor v. A-G Federation & Ors (2012) LPELR.
The second view is a better one as it avoids the further delay and expense that would be incurred by the parties if the matter is sent back to the lower Court for retrial.
?In the light of the provisions of S.285(10) of the 1999 Constitution (4th Alteration) that a Court in every pre-election matter shall deliver its judgement in writing within 180 days from the date of filing of the suit, to pronounce only on the one issue that disposes of the
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case and refuse to consider the merit of the case, can make it impossible for the case to be sent back for retrial or to be tried by this Court in exercise of its power under S.15 of the Court of Appeal Act, in case, the trial Court’s decision on the only issue it decides is set aside, where the 180 days from the date of filing the pre-election suit has expired during the pendence of the appeal here, as has happened in this case.
Because of the limited time available to determine a pre-election suit, the Court has a constitutional duty to pronounce upon not only the point of lack of jurisdiction but also all other issues and the merit of the case.
In our present case, the 180 days for the trial and determination of the suit from 30-10-2018 when the suit was filed, expired on 29-4-2019. So as it is now, even if this appeal succeeds, the suit cannot be remitted back to the trial Court for retrial and judgment and this Court can no longer exercise its power under S.15 Court of Appeal Act to try and decide the merit of the case. The success of this appeal would be of no moment.
Therefore issues Nos. 3, 4 and 5 are resolved in favour of the
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respondents.
On the whole this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the Federal High Court in Suit No. FHC/ABJ/CS/21/2018 delivered on 18-4-2019 by A.B. Aliyu J. is hereby upheld and affirmed.
The appellant shall pay costs of N200,000.00 to the respondents.
ADAMU JAURO, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in complete agreement with the reasoning and conclusions contained therein, to the effect that the appeal is lacking in merit. My noble Lord, has in the said judgment most assiduously and analytically examined all the ramifications of the case.
I adopt the said judgment as mine in dismissing the appeal. I also abide by all consequential Orders made, including that on costs.
Appeal Dismissed.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the preview of the lead judgment of my learned brother, EMMANUEL AKOMAYE AGIM, JCA.
I am in agreement with his reasoning and conclusion and orders reached therein.
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Appearances:
M.O. Onyilokwu, Esq. with him, Gavers C. Ihematulam, Esq.For Appellant(s)
K. Olowokere, Esq. with him, I.G. Ogugwa, Esq. for 1st Respondent.
A. Hussaini, Esq. for 2nd RespondentFor Respondent(s)
Appearances
M.O. Onyilokwu, Esq. with him, Gavers C. Ihematulam, Esq.For Appellant
AND
K. Olowokere, Esq. with him, I.G. Ogugwa, Esq. for 1st Respondent.
A. Hussaini, Esq. for 2nd RespondentFor Respondent
