Barrister Franc Fagah Utoo V. All Progressives Congress & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

This appeal is against the judgment of the Court of Appeal, Abuja Division in appeal No. CA/A/128/2016 delivered on 9th December, 2016 in which the Court dismissed the appeal of appellant against the judgment of the High Court of the Federal Capital Territory in suit No. CV/932/2015 delivered on the 15th day of December, 2015 dismissing the case of the plaintiff, now appellant before this Court. The instant appeal is therefore a further appeal by the appellant.

The facts of the case include the following:

On the 27th day of January, 2015, appellant, as plaintiff instituted an action vide an originating summons against the respondents in which he called for the determination of the following questions:-

1. WHETHER the 1st Defendant acted in accordance with Sections 31 (1) & 87 (4) (c) (ii) of the Electoral Act, 2010 (as amended) to have forwarded the name of the 2nd Defendant to the 3rd Defendant as candidate in the forthcoming 2015 general election in Makurdi/Guma Federal Constituency of Benue State when the 2nd Defendant neither

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participated nor emerged as winner of the primary election conducted on the 7th day of December, 2014 in Makurdi.

2. WHETHER having regard to Section 31(2) of the Electoral Act 2010 (as amended) the 2nd defendant who did not take part in the Makurdi/Guma Federal Constituency primary election of the 1st defendant held at the Haf Haven hotel premises on the 7th of December 2014 complied with the requirement of the law regarding the information and affidavit of personal particulars submitted to the 3rd defendant when he was not the one who stood and won the primary election.
3. WHETHER having regard to Sections 31 (1) and (5), 87 (4) (c) (ii) (7) (9) & (10) of the Electoral Act, 2010 (as amended), the 1st Defendant was right to have failed, refused and or neglected to submit to the 3rd Defendant the name of the Plaintiff who participated in the primary election and was declared winner and candidate of the 1st defendant, All Progressives Congress (APC) for the forthcoming 2015 general election for the Makurdi/Guma Federal constituency of Benue State.
4. WHETHER having regard to the provision of the 1999 Constitution of the Federal Republic of Nigeria (as

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amended) and the Electoral Act, 2010 (as amended) the 1st defendant having screened and cleared the plaintiff to participate in the 1st Defendant’s House of Representatives primary election and the plaintiff having participated and won the said primary election and the report of the National Assembly primaries Elections Appeal Committee of the 1st Defendant, affirming the Plaintiff as the winner of the primary election and the candidate of the 1st Defendant, the 1st Defendant had any discretion to have refused to submit the name of the plaintiff as the candidate of the 1st Defendant for the 2015 general election of Makurdi/Guma Federal Constituency of Benue State to the 3rd Defendant.

5. If the question in 4 above is answered in the negative especially against the 1st Defendant, WHETHER the plaintiff is not entitled to be accorded all the rights of a nominated candidate of the 1st Defendant for the forthcoming 2015 general election into the House of Representatives to represent Makurdi/Guma Federal Constituency of Benue State.

The plaintiff claimed the following reliefs:

1. A DECLARATION that it is mandatory for the 1st

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defendant to forward the name of the plaintiff who won the primary election conducted by the 1st defendant in the Makurdi/Guma Federal Constituency of Benue State on the 7th of December, 2014 to the 3rd Defendant in accordance with the Electoral Act 2010 (as amended).

2. A DECLARATION that the purported selection and submission of the name of the 2nd Defendant who did not participate in the 1st defendants primary election as its candidate for the forthcoming 2015 general election into the National Assembly for Makurdi/Guma Federal Constituency of Benue State to INEC is unlawful, unconstitutional, null and void and of no effect whatsoever.
3. A DECLARATION that the Plaintiff who participated and won the party primary election and was declared the candidate of the 1st Defendant is the authentic, rightful and lawful candidate of the 1st Defendant in the 2015 general election of Makurdi/Guma Federal Constituency of Benue State.
4. A DECLARATION that the 1st Defendant cannot by arbitrary fiat or through any illegal or unlawful means adopt and submit the name of the 2nd Defendant to the 3rd defendant as its House of Representatives candidate

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for the 2015 general election for Makurdi/Guma Federal Constituency of Benue State.

5. AN ORDER directing the 1st Defendant to take all steps, actions, including forwarding or submitting the name of the Plaintiff to the 3rd Defendant as its candidate for Makurdi/Guma Federal Constituency of Benue State who got the highest number of votes at the 1st defendant’s House of Representatives primary election held on the 7th day of December, 2014 in respect of the 2015 forthcoming general election into the National Assembly and to allow the Plaintiff to contest the forthcoming 2015 general election on the platform of the 1st Defendant.
6. AN ORDER directing the 3rd Defendant to publish by displaying or causing to be displayed at the relevant office (s) of the 3rd Defendant and on its website, the name and address of the Plaintiff pursuant to Section 34 of the Electoral Act 2010 (as amended).
7. AN ORDER directing the defendants to recognize, accept and deal with the Plaintiff as the candidate of the 1st Defendant in the Makurdi/Guma Federal Constituency of Benue State having emerged as the winner of the 1st defendant’s primary election held on the 7th

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