Dr. Yahaya Abubakar Abdullahi v. Hon. Sani Bawa Argungu (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

CHIMA CENTUS NWEZE, JSC (Delivering the leading judgment)

By way of originating summons, filed on June 17, 2022, the first respondent, commenced the suit, an action at the trial court. Before the trial court, the first respondent posed four questions for determination, to wit:

1. Whether or not by the combined provisions of section 84 (5) (c) (i) (ii) of the Electoral Act, 2022 (as amended), articles 2, 50 (1) (2) (c) and 50 (4) of the Constitution of the People’s Democratic Party (PDP), 2017 (as amended), Article 5 (i) (ii), 9 (a) (d) and 11 of the PDP Electoral Guidelines for Primary Elections and Articles 1, 7, 16 and 17 (a) of the INEC Regulation for the Conduct of Political Party Primaries and the PDP Result Sheet for the party primaries for Kebbi North Senatorial District, the plaintiff having scored a total of 038 votes and finishing as the first runner up in the said second defendant’s primary for Kebbi North Senatorial District, is the valid, lawful and proper candidate of the second defendant for the February General election the candidate nominated having withdrawn his candidacy.
2. Whether or not by the express provisions of section 29 (1), 31 and 33 of the Electoral Act, 2022 (as amended), articles 1, 7, 16 and 19 (a) of the INEC Regulation for the Conduct of Political Party Primaries, the declaration evidenced by the PDP result sheet for party primaries for the Kebbi North Senatorial District, the plaintiff who emerged as the first runner up in the second defendant primaries held on May 24, 2022, can be substituted and replaced with the first defendant when he had neither died nor submitted a written withdrawal from the election as required by law.
3. Whether or not in view of the clear provisions of Section 84 (5) (c) (i) (ii) and sections 29 (1), 31, 33 of the Electoral Act, 2022 (as amended), as well as Articles 2, 50 (1) (2) (c) and 50 (4) of the Constitution of the People’s Democratic Party (PDP), 2017 (as amended), the second defendant herein can conduct two primary elections in respect of Kebbi North Senatorial District to nominate its candidate for the February 2023 general election.
4. Whether or not in view of the provisions of section 84 (5) (c) (i) (ii) and sections 29 (1), 31 and 33 of the Electoral Act, 2022 (as amended), and article 49 (4) of the Constitution of the People’s Democratic Party 2017 (as amended), the second defendant herein can substitute the plaintiff who has neither died nor withdrawn from the defendant who at all times material is NOT a member of the second defendant political party.

Consequent upon the determination of the above questions, the first respondent sought sundry reliefs, contained at pages 4 and 5 of the record of appeal.

The appellant and second respondent challenged the action by filing a notice of preliminary objection, counter-affidavits, written addresses and further affidavits. The third respondent similarly filed a counter-affidavit.

In their respective notices of preliminary objection, the appellant and second respondent, in part, challenged the viability of the affidavit deposed in support of the originating summons on the ground that it offended the provisions of section 115 of the Evidence Act, as the deponent did not disclose the source of all the information deposed to therein.

It must be noted that the affidavit in support of the originating summons was deposed to by the first respondent, while the counter-affidavit of the appellant to the originating summons was deposed to by one Sheebing Andrew, a litigation clerk in the office of Counsel to the appellant and the counter-affidavit of the second respondent was deposed to by one Elizabeth Fidelis, a litigation secretary in the office of the counsel to the second respondent.

Flowing from these portions of the notices of preliminary objections, the lower Court considered the provision of section 151 of the Evidence Act, 2011 vis-a-vis the affidavit of the first respondent and the two counter-affidavits of the appellant and the second respondent, in arriving at the following conclusion:

“I have considered the provisions of section 115 of the Evidence Act, 2011 cited by the learned senior counsel on both sides, my understanding of this provision is that an affidavit shall only contain a statement of fact and the circumstances to which the deponent deposes, either of his own personal knowledge, he shall state the fact and the circumstances forming the ground of his belief and when such belief is derived from information received from another person, the name of the informant shall be given regarding the information and the time and placeand circumstance of the information…”

The trial court then held that the appellant had personal knowledge of the facts deposed in the affidavit. However, the trial court struck out the whole of paragraphs 4 of the counter-affidavit of the appellant and the second respondent respectively, along with its sub-paragraphs, having held they did not pass the test of admissibility under section 151 of the Evidence Act, 2011.

Thus, the viable facts available at the trial court in determining the originating summons, were streamlined to the following. The first respondent was a member of the second respondent political party (PDP). It was his case that he contested to represent the second respondent as its candidate in the office of Kebbi North Senatorial District in the forthcoming 2023 General Elections, along with two other persons, Alhaji Ibrahim Bawa Kwamba and Alhaji Garba Abdullahi.

The primary election took place on May 24, 2022. According to the first respondent, at the conclusion of the primary election, Alhaji Ibrahim Bawa Kwamba emerged winner of the said primary election having scored the highest number of lawful votes. Precisely, one hundred and fifty-eight votes.

Alhaji Ibrahim Bawa Kwamba by his letter dated June 4, 2022, addressed to the Chairman of the second respondent, informed the second respondent of his voluntary withdrawal of his nomination as the candidate of the second respondent for the office of Kebbi North Senatorial District in the forthcoming 2023 general elections. The said letter was attached as an exhibit.

Following the receipt of this letter of withdrawal, the second respondent scheduled another primary election for June 9, 2022. The appellant indicated interest, and indeed took steps to participate in the scheduled primary election. The first respondent did not participate in the second primary election. The scheduled primary election was conducted on the fixed date and the appellant emerged victorious in the election. Consequently, the second respondent forwarded the name and particulars of the appellant to the third respondent as its candidate for Kebbi North Senatorial District in the forthcoming 2023 general elections.

Miffed by this development, the first respondent who contended that being the runner up of the first primary election, the second respondent ought to have forwarded his name to the third respondent as its candidate upon the withdrawal of Alhaji Ibrahim Bawa Kwamba.