Damian Abdul Adejoh V. Hon. Gabriel Yunisa Olofu & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment)

The appellant and the 1st respondent are members of the Peoples Democratic Party in Olamaboro Local Government Area of Kogi State. The Party conducted primaries on 4th January, 2011 to elect a candidate who would subsequently contest the April, 2011 election into Olamaboro Constituency into the Kogi State House of Assembly.

Though conducted within the time stipulated by the Independent National Electoral Commission the primaries it would appear were marred by irregularities/violence followed by complaints/protests hence a re-run was ordered by the Party hierarchy which took place on 29th January, 2011.

The 1st respondent contended that his name should have been forwarded by the Party to the Commission based on the primaries held on 4th January, 2011 where he had 302 votes while the appellant scored only 6 (six) votes. That the purported re-run primaries of 29th January, 2011 should be declared invalid having been conducted after the expiration of the period prescribed in the Guidelines/Manuals of the Electoral Act, 2010 as amended.

The appellant on the other hand regarded the re-run primaries of 29th January, 2011 which he claimed to have won as valid or authentic and his name was therefore validly presented by the Party to the Commission as her candidate at the general election.

With the controversy raging, the 1st respondent proceeded to the Federal High Court, Abuja on 7th February, 2011 by way of originating summons supported by affidavit and documentary exhibits seeking diverse declaratory and injunctive reliefs, namely, to restrain the Peoples Democratic Party from presenting the appellant as her candidate at the forth coming elections. Furthermore, that the Independent National Electoral Commission should not recognize any other person, including the appellant, for the purposes of contesting the April, 2011 general elections.

The originating summons was subsequently, on the application of the parties, transferred by the learned trial Federal Judge to the Federal High Court, Lokoja in Kogi State for hearing and determination where pleadings were ordered, filed, and exchanged and the matter proceeded to trial. On the completion of hearing, written addresses were filed. His Lordship, I.E. Ekwo F.J., delivered judgment on 29th June, 2012. The learned Federal Judge gave detailed reasons at pages 784-787 of the printed record as follows:

“In other words, nobody can be allowed to take advantage of an illegal act. The legal effect of conducting primary election outside the period stipulated by the 2nd Defendant is that there was no primary election on 29th January, 2011. Whatever the 1st and 3rd defendants did on 29th January, 2011 in the name of primary election amounted to nothing. Nobody can claim to have been nominated in a primary election that was void ab initio. That being my view, I hold that Exhibits “DW2-G” and “D1” have lost their foundation and have become worthless in terms of evidential value in the claim of the 3rd Defendant’s nomination. I now answer the two issues formulated and argued thus:

(i) The argument that there were two competing primary elections fails irredeemably as the precedent in the case of Lado vs. CPC & Ors. (supra) cannot be used as a shield for an act that is manifestly unlawful, illegal and void; and,

(ii) On a calm assessment and complete overview of the case and evidence adduce by the parties, the Plaintiff has proved his case. Consequently, the case of the plaintiff succeeds in whole.

I therefore in the circumstances make an order granting the reliefs sought as follows:

(a) I declare that the primary election held on 4th January, 2011 by the 1st Defendant and supervised by the 2nd Defendant for the Olamaboro Local Government Constituency House of Assembly is valid and still subsists.

(b) I declare that the plaintiff’s nomination as the 1st defendant’s (PDP) flag bearer for Olamaboro House of Assembly Constituency election for the April, 2011 is valid.

(c) I declare that the purported or orchestrated re-run primary for Olamaboro Constituency for the Kogi State House of Assembly election on the 29th January, 2011 is illegal, null, void, wrongful and unconstitutional.