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‘Supreme Court Can Determine Substantive Suit If . . .’



This Appeal relates to a pre-election matter. The Appellant and the 3rd Respondent participated in the Taraba North Senatorial District primary election conducted by the 1st Respondent on 11 /12/ 2016, and the 3rd Respondent was declared the nominated candidate. Dissatisfied with the state of affairs, the Appellant instituted an action against the 1st and 2nd Respondents only at the FCT High Court, Abuja, wherein he questioned the eligibility of the 3rd respondent to vie for the senatorial seat.
The third Respondent was not listed as a Party in the Original Originating Summons filed on 18 12 2014, but the Appellant applied and was granted leave of Court to join him as a Party on 23 12 2014, which resulted in the first amendment of the Originating Summons. The 1st Respondent (Alh. Garbo Umar) filed a Counter-Affidavit to this amendment, and even on 30 /12/ 2014 he wrote a letter to PDP withdrawing from contesting. Consequent to the withdrawal of Alh. Garbo Umar, PDP substituted his name with Alh. Soni Abubakor Danladi as her candidate.
In reaction, the Appellant made an oral Application that was granted by the trial Court on 12 3 2015, for the joinder of the said Alhaji Sani Abubakar Danladi as the fourth Defendant to the Suit. The Appellant later filed ‘’Further Amended Originating Summons on 16 3 2015, wherein he tabled four Questions for Determination.
However, Justice Ashi of an FCT High Court on 10/7/2015 held that he has no jurisdiction to entertain plaintiff’s claim because INEC, which is a federal agency was included as one of the defendants, and consequently makes it inappropriate for the suit to be heard/determined by States/FCT High court.
Aggrieved, the Appellant appealed to the Court below and in its Judgment of 21/4 /2016, held that the trial Court was right when it declined jurisdiction to entertain the Suit. Further aggrieved, the Appellant appealed to this Court.
(i) Whether the Court of Appeal was right in holding that the Appellant’s action is not justiceable (sic) under Section 87 (9) of the Electoral Act, 2010 (as amended)
(ii) Whether the Court below was right in holding that the trial Court has no jurisdiction to hear and determine the Appellant’s Suit because of the involvement of Independent National Electoral Commission (INEC as a party to the Suit.
(iii) Whether the Justices of the Court of Appeal were right in their decision that the election having been held and the winner declared, the pre-election matter filed by the Appellant had become academic or hypothetical.
(iv) Whether the Justices of the Court of Appeal were right in their decision that the trial Court having found that it has no jurisdiction to hear and determine the Appellant’s case, there was no need to proceed further to determine the Appellant’s substantive Originating Summons.
issue (i) questions whether the Appellant’s action is justiciable under Section 87(9) of the Electoral Act, 2010 (as amended), and the Appellant submitted that the said Judgment of the Court below is a ”holistic adoption of arguments and submissions” of first and fourth Respondents with less or no consideration given to his case; and that Plaintiff’s case determines jurisdiction and the Court will not examine Respondent’s Counter-Affidavit, as in this case lnakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 1, Senate President V. Nzeribe (2004) 9 NWLR (Pt. 878) 251, Jev V. lyortyom (2014) 14 NWLR (Pt. 1428) 575. He cited the following cases on the requirements for bringing a pre-election matter under the said Section 87 (9) of the Electoral Act: Ukachukwu V. PDP (2014) 17 NWLR (Pt. 1435) 34, Ardo V. Nyako (2014) 10 NWLR (Pt. 1416) 591, CPC V. Ombugadu (2013) 18 NWLR (Pt. 1385) 66 and Nagogo V. CPC (2013) 2 NWLR (Pt. 1339) 448; and submitted that his cause of action satisfied the stated requirements, including the most important that the complaint must be against non-compliance with provisions of the electoral act and guidelines or Constitution of a Political Party in the conduct of primary election.
Furthermore, that no Party can submit the name of a candidate without meeting conditions stipulated under the Sections of the Act; that a breach is fundamental and contrary to Section 87 of the Act: Gbileve V. Addingi (2014) 17 NWLR (PT. 1433) 394, and that where a candidate withdraws, it becomes incumbent on the first Respondent to send his name to the second Respondent as the person with the second highest number of votes: Amaechi V. lNEC (2008) 5 NWLR (Pt. 1080) 317, Anagwu V. INEC (2012) All FWLR (Pt. 1689) 1739.
He submitted that by forwarding fourth Respondent’s name, the first Respondent acted arbitrarily and in violation of the rules, laws and guidelines for the nomination of a candidate; that the Court will not allow a political party to act arbitrarily or as it likes because it must obey its Constitution: Uzodinma V. lzunaso (2011) 17 NWLR (Pt. 1275) 3050; and that the procedure for nomination is not left to the whims and caprices of party officials – Ardo V. Nyako (supra).
He further argued that the Court below ignored his complaint, which is justiciable under the said Section 87(9) Ugwu V. PDP (2015) 7 NWLR (Pt. 1459) 478, CPC V. Ombugadu (supra); and that it relied on this Court’s decisions in Ugwu V. PDP (supra), Eyibo V. Abia (2012) 16 NWLR (Pt. 1325) 52, Gwede V. INEC (2014) 18 NWLR (Pt. 1438) 56, Emeka V. Okadigbo (2014) 18 NWLR (Pt. 1331) 55, Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310, Emenike v. PDP (2012) 210 LRCN 91 wherein nominated candidates participated, unlike in this case, where fourth Respondent did not participate in the primaries.
The appellants case was Alhajl Sanl Abubakar Danladl who was a former Acting Governor of Taraba State, was not one of the aspirants for the Senatorial Seat; however, the PDP started moves to make him its Senatorial Candidate immediately after this Court, on 21 11 2014, removed him as the said Acting Governor.
These facts, as averred to by the Appellant, remained unchallenged and not contradicted, and as he rightly submitted, the depositions are deemed admitted – Ejide V. Ogunyemi (1990) 3 NWLR (Pt. 141) 758.
What did this Court declare in Adeogun V. Fashogbon (supra)? It said a Court with jurisdiction, would not subsequently lose that jurisdiction just because a Defendant, in some vantage position and in complete disregard for the outcome of a pending Suit, goes ahead to do exactly what is sought to be prevented in the Suit. Obviously this decision speaks volume, and targets this case with guns blazing.
The Appellant satisfied conditions and fulfilled all requirements for participating in the first Respondent’s primaries for a Senate Seat. But, apparently, the first Respondent had better candidates in mind. So it brings in the ”former Acting Governor” of the State, who did not do any such thing satisfy conditions and fulfill all the requirements, and after he had won the primaries, it submitted his name to INEC.
The Appellant complained then filed an action challenging the eligibility of the third Respondent to participate at the said primaries. While the matter is pending in Court, the third Respondent withdrew his candidature, and the first Respondent did the same thing again ~ this time it brought in the ”current Acting Governor” to replace the third Respondent in total disregard for the action pending in Court; that is the action questioning the conduct of the said primaries that produced the third Respondent as its candidate in the first place and it thereby, took it upon itself to determine the Appellant’s rights and obligations with regard to his complaint against the said primaries.
This brings to mind the Latin maxim ”Ubi jus, ibi remedium” where there is a right, there is a remedy. The law ensures that if the Plaintiff has a right he must have the means to vindicate that right, and a remedy, if he is injured in the enjoyment or exercise of it. see Bello V. A-G Oyo State (1986) 5 NWLR (pt. 45) 828 SC. in this case, the Appellant had the right to participate in a level playing field with other aspirants at the primaries and if he is wronged in any way he is entitled to a remedy, an[d nothing can stop him from getting it.
Issue 4 is whether the Court below is right that the trial Court, having found it had no jurisdiction, did not need to proceed further to determine the substantive Suit. The Appellant’s contention is that having regard to the procedure of Originating Summons, the Court below erred in not pronouncing on the substantive Suit on its merit, and its failure to do so occasioned a miscarriage of justice to him.
He also argued that the pre-occupation and duty of this Court is to ensure that justice is done, which is why the Supreme Court Act empowers it to have jurisdiction over the whole proceedings as if it had been instituted in this Court as a Court of first instance to rehear the case – Obi V. iNEC (2007)11 NWLR (pt. 1046) 656; that the only way out is for this Court to invoke its power under Section 22 of the Supreme Court Act and determine the substantive Suit on its merits; that this Court can invoke its judicial powers as provided by the said Section 22 where the matter is justiciable as in this case- N.D.C. Ltd V. Adamawa State Water Board (2008) 34 NSCOR (pt. 1) 259-260
The answer to the question posed by Issue 4 is quite simple, this is a pre-election matter, which from the current trend of events, was likely to go beyond the trial Court to the two appellate Courts, and so, the trial Court ought to have addressed the substantive Suit.
To this end, I will simply say that from all that I have said so far, and with the issues resolved in favour of the Appellant, this Appeal is allowed and the decision of the Court below is, therefore, set aside. In the circumstances of this case, it will amount to additional miscarriage of justice to remit this case to the trial Court for hearing and determination of the substantive Suit a pre-election matter.
Taking into consideration that fact that the evidence required to determine the said substantive Suit is contained in the Affidavit evidence on Record, as well as the arguments/submissions of Parties, it is my view that this is a proper case in which to invoke the powers of this court under Section 22 of the Supreme Act to determine the substantive Suit as if this Court is sitting as a Court of first instance.
I have already determined that third Respondent’s nomination as the candidate of the first Respondent was invalid, null and void; and that his substitution with the fourth Respondent is null and void.
I have also gone through the Affidavit evidence and Report titled; ”Report of the Gubernatorial, Senatorial, House of Representatives and State House of Assembly of Taraba State”, attached to Plaintiff’s Further and Better Affidavit in support of the Originating Summons, as Exhibit J, which none of the Respondents has denied or disputed, and I am satisfied that Appellant scored the second highest number of votes at the said primary election conducted by first Respondent.
Even if the matter is sent back to the trial Court for rehearing, the time to comply with the requirements of nominating candidates for the election has long gone past, therefore, following the decision of this Court in Hon. James Abiodun Falake V. lNEC & Bello (supra), the only option is to make a consequential order that the Appellant, who had scored the second highest number of votes in the primaries, was the candidate of the first Respondent at the general election.
This is a hard and very bitter lesson for Political Parties to learn; they may have chosen candidates or eminent personalities they want to present as candidates to iNEC, but they have to play by the rules.
The chosen candidates must comply with requirements of the law; they must abide by the provisions of the Electoral Act, which creates a level playing field for all aspirants who seek to contest elections. So, the Political Parties, and their candidates, must obey the Rules.
In the circumstances of this particular case, Judgment is hereby entered in favour of the Appellant, and l hereby Order as follows
1. That the Appellant lsah Shuaibu Lau is entitled to be issued with a Certificate of Return as Senator representing the Taraba North Senatorial District of Taraba State in National Assembly.
2. That the Second Respondent (INEC) is hereby ordered to issue the Certificate of Return to lsah Shuaibu Lau as the Senator representing Taraba North Senatorial District of Taraba State.
3. That the fourth Respondent Alhaji Sani Abubakar Danladi is hereby ordered to vacate the Seat of the Senator representing the said Taraba North Senatorial District of Taraba State.
4. it is also ordered that Alhaji Sani Abubakar Danladi shall within ninety days from today refund to the National Assembly all monies he collected by way of salary/allowances, whatsoever and however described since he took the Seat as the Senator representing Taraba North Senatorial District of Taraba State. Each Party is to bear their own costs.
Amina Adamu Augie, JSC
Chiengwu J. Onoja (SAN) with Noah Abdul, Esq., M. A. Ebute, Esq., Edwin Agbu, Esq., Joseph Ameh Abah, Esq., and E. U. Dan-Ameh (Mrs) for the Appellant
AJ. Akanmodei Esq with Jamiu Olabode Makinde, Esq., and E. N, Chia for the 1st Respondent Federika E. ltula, Esq.,with Uchenna Edeh, Esq., and Manny Odukuge (Miss) for the 2nd Respondent Abbas Ajiya Esq., for the 3rd Respondent.
Kanu Agabi (SAN) with Peter Erivowode, Esq., Elvis Utulu, Esq., Aiseosa Osaghae (Miss), Adaeze Igbo (Miss) and Pius Onigah Esq., for the 4th Respondent.