Chief David Kente v. Senator Emmanuel Bwacha & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal, Yola Division, delivered on 24th November, 2022 setting aside the judgment of the trial High Court, Federal High Court, Jalingo Judicial Division delivered on 20th September, 2022.

The appellant was the plaintiff at the trial Court. His case was that he purchased an Expression of Interest Form in the sum of N50m as well as other sundry expenses for the purpose of contesting the Governorship of Taraba State on the platform of the APC (3rd respondent).

He was duly screened and cleared to contest along with 6 others, including 1st respondent. The election was rescheduled to hold on 26th May 2022. The 3rd respondent, through its National Working Committee, approved the indirect mode of selecting its candidates in all the States of the Federation, except Abia, Benue and Osun.

That this was published to the general public and communicated to INEC (2nd respondent). However, two days before the scheduled primary, news filtered in that the mode of election had been changed to direct primary. On 26th May, the day of the primary, there was tension at the venue.

In order to avoid a breakdown of law and order, the police intervened and invited all aspirants to the State Command of the Nigeria Police Force in Taraba State. According to the appellant, there was no agreement between the parties on the mode of conducting the election.

At a press conference late on 26th May 2022, the Chairman of 3rd respondent’s Electoral Committee announced that the election had not been conducted due to unresolved issues and that he was awaiting further clarification from the Headquarters of the 3rd respondent on the method to adopt.

Surprisingly, on 27th May 2022, the said Chairman announced at another press conference that the election had held and that the 2nd respondent was elected and returned as the candidate of the party.

According to the appellant, neither he nor any other aspirant had notice of nor participated in any primary from which the 2nd respondent emerged. He alleged that the results were written and votes allocated in violation of the 3rd respondent’s constitution, guidelines, the Electoral Act and the 1999 Constitution, as amended. He therefore instituted an action vide originating summons on 7th June, 2022 wherein he sought the determination of the following questions:

1. Whether having regard to section 84(1), (4), (5), (13) and (14) of the Electoral Act, 2022, and paragraphs 18, 19, 20 and 22 of the 3rd defendant’s Guidelines for the nomination of candidates for the 2023 General Elections the 3rd defendant conducted any primary Election known to law for the nomination of its Governorship candidate for Taraba State for 2023 Governorship Elections when there was no accreditation or any within time frame prescribed by the Guidelines, no voting or counting of votes or collation of votes or equal opportunity for the aspirants to vote or be voted for?
2. Whether having regard to section 84(4) of the Electoral Act, 2022 the plaintiff as an Aspirant to the Office of Executive Governor of Taraba State, under the platform of 3rd defendant was afforded fair and equal opportunity by the 3rd defendant to vote and be voted for at the Purported Primary Election for nomination of the 3rd defendant’s Governorship Candidate for Taraba State in the 2023 Governorship general elections when having informed the plaintiff and made public press statement as well as informed the 1st defendant that it was to going to conduct the Gubernatorial primaries in every State in Nigeria including Taraba State on the 26th May 2022 by Indirect primaries except for three States of Abia, Benue and Osun then made a summersault and surreptitiously in connivance with 2nd defendant purported to adopt direct primaries on the said 26th May 2022 for gubernatorial primaries to the disadvantage of the plaintiff who had no opportunity to vote nor appoint and deploy his agents to voting centres in the wards spread across Taraba State nor mobilise his supporters who are members of the 3rd defendant to vote for him at the purported Direct Primary of the 3rd respondent?
3. Whether the 3rd defendant was not thereby in breach of its contract with the Plaintiff as an aspirant and in breach of its statutory duties in the manner in which it purported to conduct the primary election for the nomination of a candidate for the 2023 Governorship Election of Taraba State?
4. Whether in the circumstances of this case the purported announcement/declaration by the 3rd defendant’s Governorship Primaries Election Committee, Chaired by one Lawrence Onochukwu: with one Abbas Braimoh as secretary of 2nd defendant as the Governorship candidate of the 3rd defendant for Taraba State and winner of an unlawful primary election in complete violation of the Electoral Act, 2022, the Constitution of the 3rd defendant of March 2022 (as amended); and the 3rd defendant’s Guidelines for the Nomination of candidates for the 2023 General Elections was not a sham and illegal?
5. Whether in the circumstances, the 3rd defendant has any validly nominated candidate for the 2023 Governorship Elections for Taraba State that should not be excluded from the list of candidates for the general elections in 2023?

In the event that the questions were answered in his favour, he sought the following reliefs.

1. A declaration that the mandatory provisions of the Electoral Act, 2022 the 3rd defendant’s Constitution of March 2022 (as amended); 3rd defendant’s Guidelines for the Nomination of Candidates for the 2023 General Election; there was no Governorship Primary Election known to law conducted by the 3rd defendant in Taraba State for the nomination of the 3rd defendant’s candidate for the 2023 Governorship Election for Taraba State?
2. A declaration that the purported Governorship Primary Election conducted by the 3rd defendant for the nomination of its candidate for the 2023 Governorship Election in Taraba State, violated the Electoral Act, 2022 (as amended); the 3rd defendant’s Constitution of March 2022 (as amended) and the 3rd defendant’s Guidelines for the Nomination of Candidates for the 2023 General Elections and was therefore a sham and illegal.
3. A declaration that the 3rd defendant has no valid nominated candidate for the 2023 Governorship Elections of Taraba State of Nigeria and no candidate presented by the 3rd defendant in respect of the Governorship of Taraba State should be accepted by the 1st defendant.
4. A declaration that the 3rd defendant owed the plaintiff a duty to provide an equal opportunity to vote and be voted for in the Governorship primary elections to nominate its candidate for office of Governor in the general elections coming up in 2023 and its failure to do so constituted a breach of its contract with the plaintiff as an aspirant as well as its statutory duty conduct the primary election for nomination of its candidate for the 2023 Governorship Elections for Taraba State of Nigeria in accordance with the Electoral Act, 2022.
5. Perpetual injunction restraining the 3rd defendant from presenting the 2nd defendant as its Governorship Candidate for the Governorship Election for Taraba State in the 2023 general elections and from submitting his name to the 1st defendant as its Candidate for the Governorship Election for Taraba State.
6. Perpetual injunction restraining the 2nd defendant from holding out, or carrying on or parading himself as the 3rd defendant’s Governorship Candidate for the 2023 General Election for Taraba State.
7. Perpetual injunction restraining 1st defendant or any other officers, servants or agents from accepting any submission by the 3d defendant of the name of the 2nd defendant or recognizing the 2nd defendant as the 3rd defendant’s Gubernatorial Candidate for the 2023 Governorship Election in Taraba State and
8. A mandatory injunction compelling the 1st defendant to delist the names of the 2nd and 3rd defendants (if submitted or accepted) from amongst the list of political parties and gubernatorial candidates respectively for the February 2023 general Elections for the office of Governor of Taraba State.
9. An order directing the 3rd defendant to refund to the plaintiff, at once and in full, the sum of N58,120,000.00 (fifty eight million one hundred and twenty thousand naira only) being the cost of expression of interest and nomination form, and sundry expenses incurred/purchased by the plaintiff for the Gubernatorial Primary Election for Taraba State in his bid to be the 3rd defendant’s Candidate for the 2023 Governorship Election for Taraba State;
10. An order directing the 3rd defendant to pay interest on the said sum of N58,120,000.00 at the rate of 26% per annum from the 29th day of April 2022, when the sum was paid, till same is fully and finally liquidated by the 3rd defendant.
11. N1,000,000,000.00 (one billion naira only) payable by the 3rd defendant being exemplary and general damages for its breach of contract and statutory duties in failing to conduct a primary election according to law to the detriment of the plaintiff.

In defence of the case, the 1st and 3rd respondents maintained that the election was held and that the 1st respondent was duly elected. The 2nd respondent stated that it monitored the election and the result was as announced.

The 1st and 3rd respondents filed counter affidavits in reaction to the originating summons annexed to their respective processes, Ward results up to state level and monitoring reports issued by the 2nd respondent.

The 2nd respondent filed counter affidavits deposed to by various Electoral Officers and the monitoring reports for the various Local Government Areas of the State. The appellant, in his reply affidavits to the respective counter-affidavits, contended that some of the results were written in the same handwriting and therefore challenged their authenticity.

In a considered judgment delivered on 28th September, 2022, the trial court held inter alia, that there was no evidence to show that the decision to alter the mode of election for Taraba State was taken before 26th May 2022 and not after. That by exhibit DSK2C, the 3rd respondent’s National Officers only informed the 1st respondent of the adoption of direct mode for Abia, Benue and Osun.