Alhaji Jibrin Bala Hassan V. Dr. Mu’azu Babangida Aliyu & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

W.S.N. ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at Kaduna in appeal No. CA/KD/78/08 delivered on the 22nd day of April, 2009 in which the court dismissed the appeal of the appellant against the judgment of the Federal High Court, Holden at Kaduna in suit No. FHC/KDS/CS/162/2007 delivered by that court on the 14th day of December, 2007, striking out the suit of the appellant, as plaintiff for lack of jurisdiction.

The facts of the case include the following; On the 13th day of December, 2006, the 2nd respondent conducted its primary election to select/nominate its candidate for the Gubernatorial election for Niger State scheduled for April, 2007 which election was won by the appellant, as a result of which his name and particulars were forwarded by the 2nd respondent to the 3rd respondent as the sponsored candidate of the 2nd respondent for the Niger State Governorship Election so scheduled. The 1st respondent was not a candidate at the primary election conducted in December, 2006 resulting in the emergence of the appellant; in fact at the material time, he was still a civil servant. Appellant was duly screened by the 3rd respondent and cleared to contest the said election.

However, on the 5th and 13th day of February, 2007, the 2nd respondent applied to the 3rd respondent to withdraw/substitute the 1st respondent for the appellant as the sponsored candidate of the 2nd respondent for the election in question which application was duly acted upon by the 3rd respondent. The 1st respondent, rather than the appellant, therefore contested the Niger State Governorship Election on the 14th day of April, 2007 and was consequently declared the winner thereof and was sworn in as the Governor of Niger State on the 29th day of May, 2007.

On the 7th day of November, 2007 the appellant instituted an action, suit No. FHC/KD/CS/162/2007 at the Federal High Court, Holden at Kaduna by way of Originating Summons asking for the determination of the following questions:-

“1. WHETHER having regard to the provisions of section 34(2) of the Electoral Act, 2006, the 2nd Defendant can without adducing cogent and verifiable reason change and or substitute the name of the plaintiff for the 1st Defendant as the Peoples Democratic Party Governorship candidate in the 14th April, 2007 Election in Niger State.

2. WHETHER having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by section 34(2) of the Electoral Act, 2006 by the 2nd Defendant can act, on the name of the 1st Defendant as replacement of the plaintiff’s
3. WHETHER having regard to the non-compliance with the condition to give cogent and verifiable reason as provided by section 34(2) of the Electoral Act, 2006 by the 2nd Defendant, the plaintiff is not the duly nominated candidate for the 14th April, 2007 Gubernatorial Election in Niger State under the platform of the 2nd Defendant.
4. WHETHER having regard to the provisions of Article 17.2(b) of the Constitution of the Peoples Democratic Party and Articles 13 (a)-(g), 14(a)-(k), 15(i) (a)-(e) (2), 16(a)-(f), 18(a) & (b) and 19 its Electoral Guidelines for primary election, 2006, the 1st Defendant who did not contest the Gubernatorial Primary Election could be changed and or substituted by the 2nd Defendant for the plaintiff who won the said Primary Election by 3,575 lawful votes. ”

Consequently upon the determination of the above questions, the appellant claimed the following reliefs:-

“a. A DECLARATION that the plaintiff was the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the platform of the 2nd Defendant being the candidate who won the majority of 3557 (sic) lawful votes at the Primary Election conducted by the 2nd Defendant on the 13th day of December, 2006 and whose name was submitted by the 2nd Defendant to the 3rd Defendant.

b. A DECLARATION that the 1st Defendant who did not contest the Primary Election aforesaid as mandated by Article 17.2(b) of the Constitution of the Peoples Democratic Party and the Electoral guidelines for Primary Election, 2006 issued pursuant thereto, was not qualified to be nominated by the 2nd Defendant as its Gubernatorial Candidate in the 14th April, 2007 Governorship Election in Niger State.

c. A DECLARATION that the 1st Defendant who did not contest the Primary Election aforesaid was not the lawful candidate to contest the 14th April, 2007 Governorship Election in Niger State on the platform of the Peoples Democratic Party, the 2nd Defendant.

d. A DECLARATION that by virtue of the provisions of section 32(5) of the Electoral Act, 2006 it is only a court of law that can disqualify the plaintiff who was duly nominated as the Governorship candidate of the 2nd Defendant in the 14th April, 2007 Governorship Election in Niger State and whose name and particulars were submitted by the 2nd Defendant to the 3rd Defendant as such.

e. A DECLARATION that the option of changing or substituting the plaintiff with the 1st Defendant is only exercisable by the 2nd Defendant in strict compliance with the provisions of section 34(2) of the Electoral Act, 2006.

f. A DECLARATION that the sudden substitution of the plaintiff’s name with the 1st Defendant’s name with the 1st Defendant’s lacked nay merit and it constitutes a deliberate and flagrant infraction of the provisions of section 34(2) of the Electoral Act, 2006.

g. A DECLARATION that the nomination of the 1st Defendant as the gubernatorial candidate of the Peoples Democratic Party at the said Election and the acceptance thereof by the 3rd Defendant is VOID AB INITIO.