Barr. Labaran Shuaibu Magaji v. All Progressives Congress (APC) & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal Coram: Biobele Abraham Georgewill, Mohammad Ambuisi Danjuma, Ibrahim Wakili Jauro, JJCA delivered on the 19th day of December, 2022 in respect of the main appeal and cross-appeal.

Therein, the court below unanimously allowed the appeal, upturned the decision of the trial court and upheld the election of the 2nd respondent (Arc. Shehu Ahmed Tukur) as the candidate of the 1st respondent for the Nasarawa West Senatorial Primary Election conducted on the 4th day of June, 2022.

The facts that led to this appeal are as follows:

By an originating summons filed on the 15th day of June, 2022, the appellant as plaintiff at the trial court submitted the following questions and reliefs for determination:

1. A declaration that any congress to elect delegates pursuant to Article 13.13(iii) of the All Progressives Congress Constitution (as amended 26th March, 2022) can only produce one delegate list for the purpose of any primary election to nominate a senatorial candidate pursuant to paragraph 22(II)(A) of the Guidelines for the Nomination of Candidates for the 2023 General Elections issued by the 1st defendant including the senatorial primary election to nominate the senatorial candidate for Nasarawa West Senatorial District conducted by the 1st defendant on the 4th day of June, 2022.
2. A declaration that the emergence of two different delegate list for Nasarawa LGA and Keffi LGA is an anomaly that touches on the integrity, credibility, and qualification of 75 and 50 purported delegates from Nasarawa and Keffi LGAs respectively who voted for the 2nd defendant at the senatorial primary election conducted by the 1st defendant on the 4th day of June, 2022.
3. A declaration that all acts done or any activity carried out including voting for the 2nd defendant by 75 and 50 purported delegates from Nasarawa LGA and Keffi LGAS is unconstitutional, null, and void. Having not emerged from a valid congress as required by article 13.13(iii) of the 1st defendant’s Constitution.
4. A declaration that the combined total of 125 votes cast in favour of the 2nd defendant by the purported delegates from Nasarawa LGA and Keffi LGA respectively is liable to be expunged from the total of 179 votes recorded for the 2nd defendant at the primary election conducted on the 4th day of June, 2022 by the 1st defendant, having been a vote by persons who surface through a process not known to the extant Laws, Rules, Guideline and the Constitution of the 1st defendant governing the nomination of the candidates including the senatorial candidate for Nasarawa West Senatorial District.
5. A declaration that the total number of votes to be recorded for the 2nd defendant in the primary election to nominate the senatorial candidate for Nasarawa West Senatorial District held on the 4th day of June, 2022, is 54 votes only while the plaintiff votes remain 114 votes.
6. A declaration that the plaintiff is the winner of the primary election to nominate the senatorial candidate for Nasarawa West Senatorial District, conducted on the 4th day June, 2022 by the 1st defendant.
7. A declaration that the plaintiff is the senatorial candidate of the 1st defendant for Nasarawa West Senatorial District having satisfied the requirement of the law and scored the highest number of votes cast in the senatorial primary election conducted by the 1st defendant on the 4th day of June, 2022.
8. A declaration that the plaintiff has fulfilled all the required condition stipulated in the 1st defendant Constitution to bring this action and the 1st defendant’s National Working Committee chaired by the 6th defendant cannot ignore, neglect or refuse to act on its Senatorial Election Appeal Committee’s Report and Recommendations dated the 7th day of June, 2022 and signed by the Committee Chairman Alh. Umar B. Gashu’a and Adamu M. Ibrahim as secretary and Ahmed Usman as member having found in favour of the plaintiff, pursuant to the determination of the appeal filed before the committee by the plaintiff in respect of the anomalies which took place through the actions of the defendants during the primary election for the nomination of senatorial candidate for Nasarawa West Senatorial candidate for Nasarawa West Senatorial District held on the 4th day of June, 2022.
9. An order of this honourable court directing the 3rd defendant to substitute the name of the 2nd defendant earlier presented to, by the 1st defendant as the Senatorial Candidate for Nasarawa West Senatorial District, with the plaintiff’s name and accord the plaintiff any necessary support including the issuance of any document required to satisfy the requirement of law for the plaintiff to stand the general election as the valid nominated senatorial candidate of the 1st defendant in Nasarawa West Senatorial District; upon the determination of the following questions:
10. Whether having regard to the combined construction and application of section 224 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), section 84(1) (2) (5)(c) of the Electoral Act 2022 , article 20.1(i) 20.3(c) 20.4 (ii)(c)(iii)(iv) of the All Progressives Congress (APC) Constitution (as amended 26th March, 2022) and paragraphs 22(ii)(1), votes by a purported 75 and 50 LGA delegates from Nasarawa LGA and Keffi LGA respectively, who did not emerge through a validly conducted congress of the 1st defendant can be a valid vote for the purpose of declaring the 2nd defendant as the winner of the senatorial primary election conducted by the 1st defendant on the 4th day of June, 2022?
11. Whether having regard to the combined construction and application of section 224 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), section 84(1) (2) (5)(c) of the Electoral Act 2022, article 20.1(i) 20.3(c) 20.4 (ii)(c)(iii)(iv) of the All Progressives Congress (APC) Constitution (as amended 26th March, 2022) and paragraphs 22(ii)(1), two different summary result sheet for elected delegates 2022 for Nasarawa LGA and Keffi LGA respectively, can emanate from a single congress of the 1st defendant to elect delegates for the purpose of nominating senatorial candidate of Nasarawa West Senatorial District?

On 2nd day of November, 2022, the trial court delivered its judgment where it nullified the primary election conducted on the 4th day of June, 2022 for the Nasarawa West Senatorial District based on the evidence of Omale Samuel who was subpoenaed to give documentary and oral evidence in that regard. The trial court ordered fresh primaries to be conducted within 14 days.

Dissatisfied with the decision of the trial court, the 2nd respondent appealed to the court below on the grounds amongst others that the procedure adopted by the trial court in hearing the subpoenaed witness before taking the preliminary objection of the respondents and in calling oral evidence in a matter begun by originating summons is unknown to law.

The 2nd respondent also expressed his dissatisfaction with the failure of the trial court to consider and evaluate all the cogent and material evidence placed before the said court.

The court below held that the procedure adopted by both the appellant in applying for and calling oral evidence at the stage of the proceedings before the hearing of the respondents’ preliminary objection and appellant’s originating summons, and by the trial court in proceeding to taking both oral and documentary evidence of one Omale Samuel is unknown to proceedings begun by originating summons. It also held that the trial court failed in its primary duty of properly evaluating the evidence of the parties. The court below allowed the appeal of the 2nd respondent.

At the hearing of the appeal, counsel for the 2nd respondent raised a preliminary objection already embedded in the 2nd respondent’s brief. The objections are to the competence of the appeal for non-service of the notice of appeal and that the grounds of appeal and particulars thereof are argumentative, verbose and narrative.

My Lords, in resolving the preliminary objection, it is observed that apart from the bald assertion that the notice of appeal was not served on the 2nd respondent, no other details relating to the non-service were alluded to in paragraph 3.03 of the 2nd respondent’s brief. In view of the fact that no particulars were given by the 2nd respondent of how he became aware of the appeal without proper notice, the proviso to order 2 rule 3(b) becomes applicable in that by the appearance of the party and his legal representation to defend the appeal, this court is satisfied that the notice has in fact been communicated to the 2nd respondent and no objection shall lie on the ground that the notice was not served personally on the 2nd respondent.

The essence is to bring court processes to the notice of the adverse party and that party if not personally served must show that the lack of service has caused miscarriage of justice to him. See Akeredolu v. Abraham (2018) 35 WRN 1; (2018) (Pt. 1628) 510. That leg of objection is overruled.

On the second leg of the preliminary objection raised, the purpose of the notice of appeal is to set forth concisely the grounds and particulars to be relied upon in order to give sufficient notice and information to the respondents of the precise nature of the complaints against the judgment appealed against and the issues likely to arise on appeal. So long as this has been done, the courts will not in the interest of justice strike out an inelegantly drafted notice of appeal. See Justice Party & Anor. v. INEC & Ors (2006) 19 WRN 39; (2004) 12 NWLR (Pt. 886) 140. Even if the grounds of appeal are considered to be verbose and inelegant, they communicate the complaints of the appellant and cannot by such reasons be ignored or struck out. In the circumstances, the Preliminary Objection is overruled and dismissed.

In the appellant’s brief filed by Ahmed Raji SAN, eight (8) issues were identified for determination in the appeal. However, senior counsel conceded at the hearing of the appeal that the consideration of issues 1, 3, 6 and 7 would determine the appeal. The issues are set out below: