Abdulmutalib Isa Daura v. Auwal Mohammed Yahaya & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED BABA IDRIS, JCA (Delivering the leading judgment)

The appellant as plaintiff before the lower court filed an originating summons dated and filed the 3rd day of August, 2022 and sought for the determination of the following questions:

1. Whether in view of the clear and unambiguous provision of section 106(c) and section 107(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) , read together with section 29(5) of the Electoral Act, 2022 , the 1st defendant is not qualified from taking part in or otherwise contesting any and/or all stages of elections as member Kaduna State House of Assembly representing Ungwan Sunusi Constituency Kaduna State in the 2023 General election in Kaduna having made false depositions on oath voluntarily in various affidavits and presented false and/or forged documents.
2. Whether having regard to the provision of section 29(5) of the Electoral Act, 2022 , Section 106(c) and section 107(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the fact that the 1st defendant submitted and relied on false information, dubious and forged document/certificates in order to participate in and be declared the winner of the 2nd defendant primary election held on 26th May, 2022, the 1st defendant herein is not qualified and ineligible to contest the 2023 Kaduna State House of Assembly elections as the lawful candidate of flag bearer of the 2nd defendant in the forthcoming Kaduna State House of Assembly, now scheduled for 11th March, 2023 by the 3rd defendant.
3. Whether in the circumstance of this case, the plaintiff who, next to the ineligible and unqualified 1st defendant, scored the highest number of valid votes cast at the Kaduna State House of Assembly Primary elections of the 2nd defendant which held on 26th May, 2022 ought not to be declared and returned as the winner of the said primary and, according the candidate and flag bearer of the 2nd defendant in the Kaduna State House of Assembly election, now schedule to hold 11th March, 2023 by the 3rd defendant.
4. Whether having regard to the provisions of section 29(5) of the Electoral Act, 2022, section 106(c) and section 107(1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the fact that the 1st defendant submitted and relied on false information, dubious and forged document/certificates in order to participate in and be declared the winner of the 2nd defendant primary election held on 26th May, 2022, whether the 2nd defendant herein is not precluded or otherwise prohibited from submitting, forwarding or transmitting the name of the 1st defendant to the 3rd defendant as the lawful candidate or flag bearer of the 2nd defendant in the forthcoming Kaduna State House of Assembly election, now schedule to hold 11th March 2023 by the 3rd defendant.
5. Whether the 3rd defendant, being an independent, unbiased Electoral Umpire, out or should not be restrained, precluded or prohibited from accepting or receiving from or otherwise recognizing or giving effect to the name of the 1st defendant that may have or may be sent to it as the candidate or flag bearer of the 2nd defendant for the forthcoming Kaduna State House of Assembly election, now fix 11th March, 2023 by the 3rd defendant.

The appellant also sought for the following reliefs:

1. A declaration that the 1st defendant has supplied false information to the 2nd and 3rd defendants in his INEC Form EC9 contrary to the provisions of section 107 (1)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and sections 29(5) of the Electoral Act, 2022.
2. A declaration supplying false information to the 2nd and 3rd defendants, the 1st defendant is not qualified to participate and/or be declared the winner of the 2nd defendants Kaduna State House of Assembly primary elections which held on 26th May, 2022 for the purpose of electing its candidate or flag bearer in the forthcoming 2023 Kaduna State House of Assembly election, scheduled to hold on 11th March, 2023 by the 3rd defendant.
3. A declaration that having supplied false information and submitted dubious or forged credentials/certificates in order to participate in and be declared the winner of the 2nd defendants Kaduna State House of Assembly primary elections which held on 26th May, 2022 the 2nd defendant herein is legally precluded from submitting, forwarding or otherwise transmitting the name of the 1st defendant to the 3rd defendant as the candidate or flag bearer of the 2nd defendant in the forthcoming Kaduna State House of Assembly elections now scheduled to hold on 11th March, 2023 by the 3rd defendant.
4. A declaration that the plaintiff who next to the ineligible and unqualified 1st defendant, scored the highest number of valid votes cast at the Kaduna State House of Assembly primary elections of the 2nd defendant which held on 26th May, 2022, ought to and should be returned and declared winner of the 2nd defendants Kaduna State House of Assembly Primaries and accordingly, returned as the candidate of the 2nd defendant for the forthcoming Kaduna State House of Assembly elections in Kaduna State scheduled to hold on 11th March, 2023 by the 3rd defendant.
5. A declaration that the 1st defendant should and ought to be prohibited, inhibited, prevented or otherwise restrained from holding out, parading and or advertising himself as the candidate of the 2nd defendant for the forthcoming Kaduna State House of Assembly election in Kaduna State Scheduled to hold on 11th March, 2023 by the 3rd defendant.
6. A declaration that the 3rd defendant is legally precluded or prohibited from accepting or receiving from, acting on or otherwise recognizing or giving effect to the name of the 1st defendant as the candidate or flag bearer of the 2nd defendant for the forthcoming Kaduna State House of Assembly elections in Kaduna State now scheduled for 11th March, 2023 by the 3rd defendant.
7. An order of this honourable court disqualifying the 1st defendant from participating as the candidate of the 2nd defendant in the forthcoming 2023 Kaduna State House of Assembly elections in Kaduna State scheduled to hold 11th March, 2023 by the 3rd defendant.
8. An order of this honourable court commanding, directing or otherwise mandating the 2nd and 3rd defendants to replace, forthwith, the name of the 1st defendant with that of the plaintiff as the lawful candidate of the 2nd defendant or the forthcoming Kaduna State House of Assembly elections in Kaduna State scheduled to hold 11th March, 2023 by the 3rd defendant.

The originating summons is supported by an affidavit of 21 paragraphs to which several exhibits were attached. The 1st respondent filed a counter-affidavit of 18 paragraphs.

The appellant on the other hand filed a further affidavit of 14 paragraphs to which eight exhibits were attached. The 2nd respondent also filed a counter-affidavit of 10 paragraphs to which the appellant filed a further affidavit of 12 paragraphs in response to the counter affidavit of the 2nd defendant. The 3rd respondent filed an affidavit of facts consisting of 4 paragraphs.

The 1st defendant also filed a notice of preliminary objection wherein the appellant sought for an order dismissing the suit for want of jurisdiction and upon which the trial court dismissed the suit for being statute barred.

Dissatisfied with the decision of the trial court, the appellant filed a notice of appeal on the 3rd of February, 2023 and dated 30th January, 2023 and raising 2 (two) grounds of appeal. The parties thereafter filed their respective briefs of argument.

The appellants brief of argument was filed on the 13th day of February, 2003 and settled by his counsel Yusuf Mohammed Murtala, Esq., raising one issue for determination as follows:

Whether having regard to the provision of section 29(5) of the Electoral Act, 2022 (as amended) and section 285(9) of the 1999 Constitution of Federal Republic of Nigeria (as amended) when did the cause of action arose to entitle the appellant activate the jurisdiction of the trial court regarding the false information supplied by the 1st respondent to the 3rd respondent. (Distilled from grounds one and two)

In arguing the sole issue for determination, the learned counsel for the appellant submitted that the cause of action against the false information supplied by the 1st respondent arose upon the publication made by the 3rd respondent on the 22nd day of July, 2022 to the general public also relying on section 29(4) and (5) of the Electoral Act, 2022 and that the decision of the trial court as contained in page 482 of the record of appeal is unthinkable and misconstrued. In support of this point of argument, counsel cited the case of Abubakar v. INEC (2021) 45 WRN 72; (2020) 12 NWLR (Pt. 1737) 37 at 163, paragraphs C – D.

The appellants counsel also submitted that upon the receipt of exhibit S from the 3rd respondent and the subsequent filing of the instant suit on the 3rd day of August, 2022 before the trial court, which is exactly 12 days out of the 14 days as allowed by the Electoral Act, 2022 (as amended) thus cannot be said to be in contravention of the provision of section 285(9) of the 1999 Constitution and that there is no justification for the trial court to dismiss the appellants suit for being statute barred and that the trial court also erred when it failed to pronounce on the originating summons duly argued before the court and to afford the appellate court an opportunity to have the opinion of the trial court on the issues raised on the merit.

In conclusion, this court was urged to exercise its powers under section 15 of the Court of Appeal Act, to hold that the 1st respondent is not qualified to contest primary election into Ungwan Sanusi Constituency for Kaduna State House of Assembly and replace him with the appellant having scored the 2nd highest votes is the winner of the primary election to represent Ungwan Sanusi for Kaduna State House of Assembly in the general election schedule to hold on the 11th day of March, 2023 and thus set aside the judgment of the trial court and grant the reliefs sought by the appellant.

The 1st respondent filed his brief of argument on the 17th day of February, 2023 and settled by his counsel, Badarudeen Abdullahi, Esq. raising two issues for determination as follows:

1. Whether the suit filed by the appellant (as plaintiff) was not indeed statute-barred?
2. Whether the Court of Appeal can, in the circumstances of this case, invoke its powers under section 15 of the Court of Appeal Act, 2004?

In arguing issue one, the appellants counsel submitted that the appellant should have filed the suit at the trial court, 14 days after the date he saw the 1st respondents nomination and expression of Interest forms (Exhibit D) and became aware that allegedly, the 1st respondent submitted forged documents. Counsel referred to paragraphs 12, 13, 14, 15, 16, 17 and 18 of the appellants affidavit in support of the originating summons and paragraph B7 of the appellant brief and argued that it shows that the knowledge or awareness was the main factor and that the appellant already knew that the 1st respondent was not allegedly qualified to contest for the primary election right from the primary election. He further referred to section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case of Karshi & Ors. v. Gwagwa (2023) 33 WRN 146; (2022) LPELR57544 (SC). The 1st respondents counsel also argued that there was no need to consider the merits of a case that has no live cause of action to sustain it.