Tukur Ibrahim V. Alhaji Yahya Ishaq Umar & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Bauchi, (hereinafter referred to as the lower court) presided over by Justice M.T. Salihu. The judgment was delivered on the 15th day of June, 2012, in favour of Alhaji Yahaya Ishaq Umar, (hereinafter referred to as the 1st Respondent) who was the Plaintiff at the lower court.

Alhaji Tukur Ibrahim, (hereinafter referred to as the Appellant) was the Defendant at the lower court. Dissatisfied with the judgment delivered on 15th June, 2012, he appealed to this court vide Notice of Appeal dated and filed on the 26th of July, 2012.

Briefly, the background facts of the case are that the 1st respondent and the appellant were members of the 2nd respondent, a Political Party called and known by the name CONGRESS FOR PROGRESSIVE CHANGE (C.P.C.). For the elections held on 28th of April, 2011, there was a primary election conducted to choose a candidate to represent Toro/Jama’a Constituency for a seat in the Bauchi State House of Assembly on the platform of the 2nd respondent, the Congress for Progressive Change (C.P.C.).

The 1st respondent claimed that he was the one who was nominated as a candidate of the 2nd respondent to contest the election for a seat in the State House of Assembly for the said Constituency. That his name was forwarded to the Independent Electoral Commission (INEC) by the 2nd respondent, however, he later discovered that his name was substituted with the name of the appellant.

Notwithstanding his protest to the 2nd respondent and the Independent National Electoral Commission (INEC) on the substitution of his name with that of the appellant, the Independent National Electoral Commission (INEC) conducted the election on the 28th April, 2011, and returned the appellant as the elected candidate for the Toro/Jama’a Constituency of Bauchi State. The 1st respondent was not satisfied with the return of the appellant by the Independent National Electoral Commission (INEC) hence he initiated a suit by originating summons against the appellant and Independent National Electoral Commission (INEC), seeking the resolution of the following questions:

1. Whether by virtue of Section 87 and particularly 87(4)(c) of the Electoral Act, 2010 (as amended) and the guidelines for the nomination of candidates for Presidential, Gubernatorial, Senatorial, House of Representative and House of Assembly Elections of the Congress for Progressive Change (C.P.C.), the Plaintiff having won the Primary election for Toro/Jama’a State Assembly Constituency of Bauchi State which was held on 11th Jan 2011 and whose name was validly returned as winner of the Primary Election conducted by the valid Chairman Electoral Committee on primaries and Congress, Bauchi State, Col. ISA GARKIDA USMAN (RTD) can be substituted, changed or replaced by Tukur Ibrahim the 2nd Defendant herein and not pursuant to Section 35 of the Electoral Act, 2010 (as amended).
2. Whether by virtue of Sections 33 and 35 of the Electoral Act, 2010 (as amended) and the Guideline for the nomination of candidates for Presidential, Gubernatorial, Senatorial, House of Representatives and House of Assembly Elections of the 2nd Plaintiff, Congress for Progressive Change (C.P.C.) the 1st Defendant can validly return in the Election held on the 28th April, 2011 the 2nd Defendant herein having lost in the Primary Election that was legitimately and lawfully conducted by the validly appointed Chairman Electoral Committee on Primaries and Congress, Bauchi State and the names of the 1st Plaintiff Alhaji Yahaya Ishaq Umar having been submitted and confirmed to the 1st Defendant as the legitimate and valid candidate of the 2nd Plaintiff Congress for Progressive Change (C.P.C.) in the said election.
3. Whether the 1st Defendant can validly/constitutionally return the 2nd Defendant’s name and not the 1st Plaintiff when the 1st Plaintiff, Alhaji Yahaya Ishaq Umar of the (C.P.C.) was the winner of the legitimate Primary Election conducted on 11th Jan 2011 at the Toro/Jama’a constituency of the Bauchi State Assembly and the 1st Plaintiff’s name submitted and confirmed canvassed for support, votes and won his election as Member Elect, Toro/Jama’a Constituency of the State Assembly.
4. Whether in the circumstance of this case and having regard to all the provisions of the Law, the 1st Defendant can constitutionally and legally take away the mandate of the 1st Plaintiff, Alhaji Yahaya Ishaq Umar and give same to the 2nd Defendant Tukur Ibrahim who lost the primary Election to the 1st Plaintiff.

The 1st respondent sought the following reliefs as a consequence of the resolution of the questions posed supra:

a. A DECLARATION that the 1st Plaintiff who won the Primary Election of the 2nd Plaintiff, Congress for Progressive Change (C.P.C.) held on the 11th Jan., 2011 by scoring the highest number of votes totaling 2409 votes is the candidate of the 2nd Plaintiff, Congress for Progressive Change (C.P.C.) in the 28th April, 2011 Toro/Jama’a State Constituency of the Bauchi State House of Assembly Election and his name cannot be substituted by the 2nd Defendant contrary to Sections 33 and 35 of the Electoral Act, 2010 (as amended).

b. A DECLARATION that any other person than the 1st Plaintiff cannot be returned including the 2nd Defendant Tukur Ibrahim who lost the primary election conducted by the 2nd Plaintiff Congress for Progressive Change (C.P.C.) on the 11th January, 2011 to the 1st Plaintiff and cannot be returned by the 1st Defendant as winner of the 28th April, 2011 Election for the Toro/Jama’a State Constituency of Bauchi State House of Assembly.

c. A DECLARATION that the 2nd Plaintiff nominated and sponsored only the 1st Plaintiff and not the 2nd Defendant in the election held on 28th April, 2011 for Toro/Jama’a State House of Assembly and therefore wrongly returned by the 1st Defendant.

d. A DECLARATION that the 2nd Plaintiff nominated and sponsored the 1st Plaintiff in the election held on 28th April, 2011 for Toro/Jama’a State Constituency of the Bauchi State House of Assembly, the 1st plaintiff having won the Primary Election held on the 11th January, 2011 and his name submitted to the 1st Defendant and the same confirmed, the 1st Defendant cannot validly return the 2nd Defendant as winner of the said election.

e. A DECLARATION that the substitution of the 1st Plaintiff’s name and return of the 2nd Defendant by the 1st Defendant contrary to Sections 33 and 35 of the Electoral Act, 2010 (as amended) is null and void.

f. A DECLARATION that the 1st Plaintiff having being presented as the candidate of the 2nd Plaintiff to the 1st Defendant and his name having being published by the 1st Defendant, the Defendant cannot validly, legally and lawfully change, substitute or replace the 1st plaintiff with any other person or the 2nd Defendant as the 2nd Plaintiff’s candidate for Toro/Jama’a State Constituency of the Bauchi State House of Assembly election held on the 28th April, 2011.

g. AN ORDER of perpetual injunction restraining the 2nd Defendant from parading himself as member elect representing Toro/Jama’a State Constituency election held on the 28th April, 2011 on the platform of the 2nd Defendant, CPC.