Karshi & Ors V. Gwagwa & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

EMMANUEL AKOMAYE AGIM, J.S.C. 

On 9-6-2021, the 1st respondent herein as plaintiff commenced Suit No. CV/1052/2021 by way of Originating Summons against the appellants herein and 2nd to 12th respondents herein as defendants. The questions for determination in the summons are as follows:-

1. WHETHER by virtue of Section 87 of the Electoral Act, 2010 (as amended) and having regard to provisions of Articles 19, 20 and 21 of the Constitution of the All Progressives Congress and the APC Guidelines for nomination of candidates for FCT Area Council and Wards Elections it is lawful for the 18th Defendant acting for and on behalf of the 6th-17th defendants and the 2nd defendant to recognize and forward the name of any person other than the plaintiff as its candidate for the forthcoming Abuja Municipal Area Council Elections.

​2. WHETHER by virtue of the provisions of Section 87 of the Electoral Act, 2010 (as amended) and having regard to the provisions of Article 20 of the Constitution of the All Progressives Congress and the Guidelines for nomination of candidates for FCT Area Council and Wards Elections it is lawful for the 18th defendant acting for and on behalf of the 6th-17th defendants and the 2nd defendant to change the result of the primary election conducted by the FCT Chapter of the 2nd defendant for the Local Government Council Chairmanship Primary Elections in Abuja Municipal Area Council on the 23rd of April, 2021 in which the plaintiff emerged as the winner and was so declared by the FCT Chapter of the 2nd defendant and forward the name of the 1st defendant who lost the primary election.

3. WHETHER in view of the provisions of Section 87 of the Electoral Act, 2010 (as amended), the 18th defendant acting for and on behalf of the 6th-17th defendants and the 2nd defendant are not under the obligation to forward the name of the plaintiff as its candidate to the 3rd defendant for the forthcoming Abuja Municipal Area Council General Elections and to be so recognized by the 3rd defendant.
4. WHETHER having duly participated and won the Primary Election of All Progressives Congress (APC) for the Abuja Municipal Council (AMAC) in accordance with the Constitution and the Guidelines for the Nomination of Candidates for the forthcoming FCT Area Council and Ward Elections of 6th-18th defendants and the 2nd defendant are not under the obligation to forward the name of the plaintiff to the 3rd defendant?
5. WHETHER by virtue of the 2nd defendant’s Summary Result Sheet of the FCT Chapter of the 2nd defendant for the Local Government Council Chairmanship Primary Election, Abuja Municipal Council dated the 23rd of April, 2021, the 4th defendant’s Report on the Abuja Municipal Area Council (AMAC) Chairmanship Primary Election in AMAC dated the 28th of April, 2021 and the 3rd defendant’s Report Arising from the All Progressives Congress Primary Election/Appeals on FCT Area Councils Elections dated the 27th of May, 2021 the name of the 1st defendant or any other person apart from the plaintiff can be forwarded to the 3rd defendant as the winner of the 2nd defendant’s primary elections held on the 23rd of April, 2021.
6. WHETHER by virtue of the provisions of the 1999 Constitution, the Electoral Act, the Constitution of the APC and the Guidelines for the Nomination of Candidate for the FCT Area Council and Ward Elections and the 3rd defendant’s letter dated the 27th of April, 2021 written to the 2nd defendant on the need to uphold internal democracy and due diligence in processing list of candidates for Elections, the 6th-18th defendants and the 2nd defendant are not duty bound and obliged to exercise due diligence in processing its list of candidates for election?

The reliefs claimed for in the summons were as follows:

1. A DECLARATION that by virtue of Section 87 of the Electoral Act, 2010 (as amended) and having regard to provisions of Articles 19, 20 and 21 of the Constitution of the All Progressives Congress and the APC Guidelines for the nomination of candidates for FCT Area Council and Wards Elections it is unlawful for the 18th defendant action for and on behalf of the 6th-17th defendants and the 2nd defendant to recognize and forward the name of any person other than the plaintiff as its candidate for the forthcoming Abuja Municipal Area Council General Elections.
2. A DECLARATION that it is unlawful for the 2nd defendant and the 6th-18th defendants to recognize and forward the name of the 1st defendant or any candidate other than the plaintiff to the 3rd defendant as its candidate for the Abuja Municipal Area Council General Elections.
3. A DECLARATION that it is unlawful for the 2nd defendant and 6th-18th defendants to change the result of the Primary Election conducted for Abuja Municipal Area Council by submitting the name of the 1st defendant to the 3rd defendant in which the plaintiff emerged the winner and was so declared by the 3rd defendant.
4. A DECLARATION that the name of the 1st defendant submitted to the 3rd defendant by the 2nd defendant and the 6th-18th defendant or any other person not being the name of the plaintiff for the Abuja Municipal Area Council General Elections is unlawful, null and void.
5. A DECLARATION that by virtue of the All Progressives Congress Summary Result Sheet for the Local Government Council Chairmanship Primary election, Abuja Municipal Area Council dated the 23rd of April, 2021, the 4th defendant’s Report on the Abuja Municipal Area Council (AMAC) Chairmanship Primary Election dated the 27th of April, 2021, the 5th defendant’s Report on the conduct of All Progressives Congress Primary Election in AMAC dated the 28th of April, 2021 and the 2nd defendant’s Report arising from the All Progressives Congress Primary Election/Appeals on FCT Area Councils Elections dated the 27th of May, 2021 only the plaintiff’s name can be forwarded to the 3rd defendant as the winner of the 2nd defendant’s primary elections held on the 23rd of April, 2021.
6. A DECLARATION that by virtue of the provisions of the 1999 Constitution, the Electoral Act, the Constitution of the APC and the Guidelines for the nomination of Candidate for the FCT Area Council and Ward Elections and the 3rd defendant’s letter dated the 27th of April, 2021 written to the 2nd defendant on the need to uphold internal democracy and due diligence in processing list of candidates for elections, the 2nd defendant is duty bound and obliged to exercise due diligence in processing its list of candidates for Abuja Municipal Area Council Elections.
7. AN ORDER setting aside the 2nd and 6th-18th defendants’ (Care Taker/ Extraordinary Convention Planning Committee) letter dated 25th May, 2021, reference No. APC/NHDQ/INEC/19/021/014, SIGNED THE 6TH AND 18TH Defendants addressed to the 3rd defendant’s Chairman forwarding the name of the 1st defendant as the candidate for the General Election to be conducted by the 3rd defendant in January, 2023 or any other date fixed by the 3rd defendant for the office of the Chairman, AMAC, Abuja.
8. A MANDATORY ORDER directing the 3rd defendant, its Chairman, officers or staff to recognize and accept the name of the plaintiff as the rightful and lawful candidate of the 2nd defendant for the General Election to be conducted in January, 2023 or any other date fixed by the 3rd defendant for the office of the Chairman of the Abuja Municipal Area Council, Abuja.
9. AN ORDER of mandatory injunction directing the 2nd defendant to submit the name of the plaintiff to the 3rd as its candidate to the Abuja Municipal Area Council Elections.
10. AN ORDER of mandatory injunction directing the 3rd defendant to accept and treat the plaintiff as the candidate of the 2nd defendant for the forthcoming Abuja Municipal Area Council Elections.
11. AN ORDER of perpetual injunction restraining the 1st defendant from parading himself as the candidate of the 2nd defendant for the forthcoming Abuja Municipal Area Council Elections.
12. AND for such further orders (s) as this Court may deem appropriate to make in the circumstances of this case.

The summons was supported by affidavits. The defendants filed counter-affidavits in opposition to the summons as well as preliminary objection to the jurisdiction of the trial Court to entertain the suit.

The objection and the merit of the suit were considered together. Following the adoption of written addresses by all parties, the trial Court in its judgment of 27-9-2021 upheld the preliminary objection that the suit was statute barred and that therefore it lacked the jurisdiction to entertain and determine same. It refrained from determining the merit of the suit as it saw no need for such a consideration having held that the trial Court lacked the jurisdiction to determine the suit as it was statute barred.

Dissatisfied with the said judgment of the trial Court, the plaintiff on 7-10-2021 filed a notice of appeal against the said judgment. The 12th to 18th defendants filed a notice of cross-appeal against a part of the judgment.

​The Court of Appeal allowed the appeal of the 1st respondent herein, held that the suit was not statute barred and that the trial Court had the jurisdiction to determine it, set aside the judgment of the trial Court, invoked its power under Section 15 of the Court of Appeal Act 2004 to determine the merit of the suit and granted reliefs 1 to 6 claimed for in the Originating Summons and made orders it described as consequential orders. It struck out the cross-appeal for having been rendered academic.

Dissatisfied with the judgment of the Court of Appeal, the appellants herein commenced this appeal No. SC.1166/2021 by filing a notice of appeal on 15-12-2021. The 5th respondent herein filed a notice of cross-appeal against the decision of the Court of Appeal on 16-12-2021 that the cross-appeal is academic.

The parties have filed, exchanged and adopted their respective briefs in the appeal and cross-appeal as follows- appellants’ brief, 1st respondent’s brief, 2nd respondent’s brief, 6th to 12th respondents’ brief, appellants’ reply brief to the 1st respondent’s brief, cross appellant’s brief, 1st cross respondent’s brief and cross appellant’s reply to 1st cross-respondent’s brief.

​The 1st cross-respondent also filed a motion on notice praying for the striking out of the cross-appeal. The motion is argued in the 1st cross respondent’s brief. The cross-appellant replied to the arguments in his reply brief.

I will determine the main appeal first and then determine the cross appeal.

​The appellants’ brief raised the following issues for determination-

“1. Whether the lower Court was right when it held that the cause of action arose on 28th May, 2021 and set aside the decision of the trial Court. (Distilled from grounds 1 and 2).