APC v. Sheriff & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Lead Judgment)

On June 22, 2022, the first respondent herein, Bashir Sheriff, commenced an action, by way of Originating Summons, at the Federal High Court, Damaturu Judicial Division, against the appellant, second and third respondents.

He sought the determination of four questions contained at pages 1-155 of the Record of Appeal. They are as follows:

1. Whether in view of the provisions of Section 84 (5) (c) of the Electoral Act, 2022, and having regard to the provisions of Article 20.4 of the Constitution of the All Progressives Congress (APC) and the Guidelines for the Nomination of Candidates for the 2023 General Elections issued by the first defendant, it is lawful for the first defendant to recognize any person other than the plaintiff as its candidate, for Yobe North Senatorial District for the position of Senate.
2. Whether in view of the provisions of Section 84 (5) (c) of the Electoral Act, 2022, and having regard to the provisions of Article 20.4 of the Constitution of the All Progressives Congress (APC) and the Guidelines for the Nomination of Candidates for the 2023 General Elections issued by the first defendant, it is lawful for the first defendant to change the name of the plaintiff who emerged winner at the Primary Election conducted by the first defendant for Yobe North Senatorial District.
3. Whether in view of the provisions of Section 84 (5) of the Electoral Act, 2022, the first defendant is not under a mandatory duty to forward the name of the plaintiff as its candidate for Yobe North Senatorial District to the third defendant and the third defendant is under a duty to accord him recognition and publish his name as candidate for Yobe North Senatorial District.
4. Whether in view of the provisions of Section 84 (5) (c) of the Electoral Act, 2022, and having regard to the provisions of Article 20.4 of the Constitution of the All Progressives Congress (APC) and the Guidelines for the Nomination of Candidates for the 2023 General Elections issued by the first defendant, the purported primary election conducted on any date after the date of the Presidential Primary Election is not invalid, null and void the plaintiff who won the primary of May 28, 2022, having not withdrawn his candidature.

In anticipation of favourable answers to these questions, the first respondent sought the following reliefs:

1. A DECLARATION that it is unlawful for the first defendant to recognize the name of the second defendant or any candidate other than the plaintiff as its candidate for Yobe North Senatorial District for 2023 Election.
2. A DECLARATION that it is unlawful for the first defendant to change the name of the plaintiff with the name of the second defendant in respect of the primary election conducted by the first defendant for Yobe North Senatorial District (Zone C) in which the plaintiff emerged winner and was so declared by the first defendant.
3. A DECLARATION that any name of candidate submitted by the first defendant to the third defendant not being the name of the plaintiff for Yobe North Senatorial District is unlawful, null and void.
4. AN ORDER of mandatory injunction directing the first defendant to accept and treat the plaintiff as its candidate for Yobe Senatorial District for 2023 Election.
5. AN ORDER of mandatory injunction directing the third defendant to accept and treat the plaintiff as the substantive candidate for the first defendant for Yobe Senatorial District for 2023 Election.
6. AN ORDER for mandatory injunction compelling the third defendant to accept and treat the plaintiff as the substantive candidate of the first defendant for Yobe North Senatorial District for 2023 Election.
7. AN ORDER of injunction restraining the second defendant from parading himself as the Candidate for the first defendant for Yobe North Senatorial District for 2023 Election.
8. AN ORDER setting aside the purported primary election conducted by the first defendant on any date after the presidential primary same not been conducted in accordance with the provisions of the Electoral Act, 2022, and the APC Guidelines for the nomination of candidate for the 2023 General Elections issued by the first defendant.

The parties duly joined issues on the Originating Summons. The affidavits and various objections of the appellant were heard together with the substantive matter in the Originating Summons. The preliminary objections of the appellant bothered on jurisdiction of the trial Court to entertain the first respondent’s suit.
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After taking arguments from the contending parties and considering evidence before it, the trial Court, by its judgment delivered on September 28, 2022, found in favour of the first respondent. The trial Court held inter alia, that the first respondent’s action is a pre-election matter and being a pre-election matter, it falls squarely within its jurisdiction. Consequently, the trial Court granted all reliefs sought by the first respondent under the Originating Summons. The judgment of the trial Court is contained at pages 768 – 817 of the Record of Appeal.

Aggrieved by the decision of the trial Court, the appellant appealed to the Court of Appeal, (hereinafter, simply, referred to as “the lower Court”]. The lower Court, in its judgment at pages 967-1098 of the Record of Appeal, affirmed the decision of the trial Court.

Aggrieved by the decision of the lower Court, the appellant has now appealed to this Court via a Notice of Appeal filed on December 9, 2022.

The appellant filed his brief of argument on January 11, 2022. Therein he raised six issues for determination, to wit:

1. Whether in the circumstances of the appeal before the Court below, especially with the allegation of fraud in

the midst of other irreconcilable conflicts in the numerous affidavits, further affidavits filed by the parties in support of their various conflicting positions, the Court below was correct to hold that the trial Court was right to have adjudicated the first respondent’s case on the first respondent’s originating summons.

2. Whether the Court below has the jurisdiction to uphold the decision of the trial Court which held that the first respondent is the lawful candidate for the appellant for Yobe North Senatorial District 2023 General Election by virtue of being the winner of the primary election said to have been held on 28/5/2022, when indeed the result of the said primary election, the third respondent’s report and other exhibits relating to the said primary election in the first respondent’s suit clearly showed that the said primary election which was conducted by the first respondent (Bashir Sheriff) himself along with three (3) other persons under the name and style of planning committee was conducted to nominate a candidate for a non-existent constituency called “Zone C” and the purported winner was one Alhaji

Bashir Sherriff, a name different from the first respondent, (Bashir Sheriff)?

3. Whether their Lordships in the Court of Appeal were correct to have held that the appellant’s appeal before their Lordships is an abuse of Court Process?
4. Whether the Court below has the jurisdiction to affirm the decision of the learned trial Judge that the first respondent was not given a fair hearing in respect of the primary election conducted by the appellant on June 9, 2022, when the said first respondent never made any claim for relief for the nullification of the said primary election of June 9, 2022 in which the second respondent was returned as the winner of the said primary election?
5. Whether their Lordships in the Court of Appeal have lawful jurisdiction in view of the totality of the evidence adduced in the first respondent’s suit including Exhibits 1, 4, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20A, 20B, 20C and 21 tendered by the first respondent to hold that the first respondent was entitled to the reliefs he claimed in his originating Summons?
6. Whether in the peculiar circumstances of the primary election of the appellant held on

June 9, 2022, the third respondent’s deliberate failure to monitor the primary election of the appellant held on June 9, 2022, could in law invalidate the result of the said primary election held on June 9, 2022?

The first respondent, on his part, filed his brief of argument on January 27, 2022. Therein he raised two issues for determination, as follows:

1. Whether the lower Court was correct when it held that the trial Court was right when it determined this case on the first respondent’s Originating Summons?
2. Whether in the circumstances of this case, the lower Court was right when it held that the only valid primary election for Yobe North Senatorial District conducted by the National Working Committee of the appellant was the one held on May 28, 2022, that produced the first respondent as the candidate for the Yobe North Senatorial District?

As required by law, each of the parties, through her counsel, adopted the relevant written arguments, at the hearing of this appeal on February 1, 2023.

In dealing with this appeal, I find, with all sense of responsibility as the law permits me, that a consideration of issue no. 1, raised by the appellant herein, would suffice for the determination of this appeal.