LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU, JSC (Delivering the leading judgment)

This is an appeal against the decision of the Court of Appeal, Makurdi Division, (Coram Mohammed A. Danjuma, Biobele A. Goergewill and Ibrahim W. Jauro, JJCA) in appeal No. CA/MK/EP41/ 2022, delivered on 10/2/2023 wherein the court below dismissed the appeal of the appellant and affirmed the judgment of the trial court.

Thus this is an appeal against concurrent findings of fact and conclusion of law by the two lower courts.

The facts that led to this appeal are as follows:

The appellant instituted this action at the Federal High Court sitting in Makurdi, Benue State via an originating summons filed on 22/6/2022 where he sought for the determination of the following questions:

1. Whether by the provisions and interpretations of section 35 of the Electoral Act, 2022, 285(a)-(c) (sic) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the 2nd defendant’s Constitution and guideline for the conduct of primary election for the gubernatorial aspirant and the 3rd defendant’s regulations for the conduct of Political Party Primary Elections read together with exhibits “B” and “C” (emanating from the All Progressive Congress Gubernatorial Primary Election held on the 28/05/2022 and 9/6/2022) respectively vis-a-vis exhibit “D” (Result sheet of Labour Party Gubernatorial Primary Elections held on the 9/6/2022) the 1st defendant’s nomination under the 2nd defendant is invalid by reason of multiple nomination.
2. Whether by the provisions and interpretations of section 35 of the Electoral Act, 2022, section 285 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) , and the 2nd defendant’s Constitution and guideline for the conduct of primary election for the Gubernatorial Aspirant and the 3rd defendant’s regulations for the conduct of Political Party Primary Elections read together with exhibits “B” and “C” (emanating from the All Progressive Congress Gubernatorial Primary Election held on the 28/05/2022 and 9/6/2022) respectively vis-a-vis exhibit “D” (Result sheet of Labour Party Gubernatorial Primary Elections held on the 9/6/2022) the 1st defendant’s Nomination under the platform of the 2nd defendant, this honourable court is not under a duty to perpetually restrain the 2nd defendant from presenting the name of the 1st defendant to the 3rd respondent and/or holding the 1st defendant as the candidate and/or flag bearer of the 2nd defendant. The 1st defendant having being nominated by multiple nominations.
3. Whether by the provisions and interpretations of section 35 of the Electoral Act, 2022, 285(14)(a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the 2nd defendant’s Constitution and Guideline for the conduct of primary election for the Gubernatorial Aspirant and the 3rd defendant’s Regulations for the conduct of Political Party Primary Elections read together with exhibits “B” and “C” (emanating from the All Progressive Congress Gubernatorial Primary Election held on 28/05/2022 and 9/6/2022) respectively vis-a-vis exhibit “D” (Result sheet of Labour Party Gubernatorial Primary Elections held on the 9/6/2022) the 1st defendant’s nomination under the platform of the 2nd defendant, this honourable court is not under a duty to perpetually restrain the 3rd defendant from accepting, recognizing, publishing and/or putting the name of the 1st Defendant on the ballot paper as the candidate sponsored by the 2nd defendant for the forthcoming Governorship Election in Benue State in the year 2023 General Election on the ground that the 1st defendant was nominated by multiple nomination from the 2nd defendant and the All Progressive Congress (APC), as evidence by exhibits “B”, C, and D respectively.
4. A declaration that the concurrent participation by the 1st defendant in the primary elections of the two political parties (namely, the APC and the Labour Party) at the same time and same day is unknown to the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act, 2022.
5. Whether the plaintiff who vividly participated in all processes of the primary election for the Gubernatorial Election of the Benue State Governorship General Election 2023 under the platform of the 2nd defendant and who scored the second highest vote can be returned as the validly nominated candidate/flag bearer of the 2nd defendant for the 2023 General Election.

The appellant claimed the following reliefs against the defendants jointly and severally:

1. A declaration that the nomination of the 1st defendant was a multiple nomination thereby in breach of section 35 of the Electoral Act, 2022, the 1st defendant having participated and been nominated in an earlier Primary Election under the platform of the All Progressive Congress (APC) in the primary election conducted on the 28/5/2022 and a re-run primary election of All Progressive Congress (APC) on the 9/6/2022 and for having participated in another political party primary election for the nomination of gubernatorial candidate for the 2nd defendant on the 9/6/2022.
2. A declaration that the nomination of the 1st defendant in the primary election conducted by the 2nd defendant to nominate the 2nd defendant’s gubernatorial candidate for the 2023 Governorship Election in Benue State is invalid nomination, therefore null and void and of no legal effect whatsoever.
3. An order of court that the purported nomination with respect to the 1st defendant and the forwarding of the 1st defendant’s name by the 2nd defendant to the 3rd defendant as the gubernatorial candidate/flag bearer of the 2nd defendant in the primary election held on 9/6/2022 at Eunice spring hall is the invalid as 1st defendant was nominated by multiple nomination in breach of section 35 of the Electoral Act, 2022.
4. An order of court nullifying the 103 votes allegedly credited to the 1st defendant who was nominated by multiple nominations under the two political parties (i.e. All Progressive Congress and Labour party).
5. An order that the plaintiff who validly participated in the primary election for the nomination of the gubernatorial candidate of the 2nd defendant for the gubernatorial election in the Benue State for 2023 Governorship Election, who scored the second highest vote is the validly nominated candidate of the 2nd defendant and returned as the candidate of the 2nd defendant.
6. An order that the 2nd defendant’s gubernatorial candidate arising from the primary election conducted by the 2nd defendant on 9/6/2022 is the plaintiff.
7. An order against the 2nd and 3rd defendant to enter the name of the plaintiff on the ballot paper as the candidate sponsored by the 2nd defendant for the Governorship Election in Benue State in the 2023 general elections, the plaintiff having been the only validly nominated candidate of the 2nd defendant.

It was the appellant’s (as plaintiff’s) contention at the trial court through his affidavit that the 1st respondent was not qualified to be fielded as the 2nd respondent’s gubernatorial candidate in the 2023 General Election because he was simultaneously nominated at the primary elections conducted by the All Progressive Congress (APC) on 28/5/2022 and the re-run election on the 9/6/2022, as well as that of the 2nd respondent, conducted on 9/6/2022 thereby flagrantly violated the provision of section 35 of the Electoral Act, 2022 and Article 9(1)(i) of the 2nd respondent’s Constitution. The appellant as plaintiff in addition contended that as at the time the 2nd respondent’s primary election was conducted, the 1st respondent was still a subsisting member of the APC.

He further deposed that the 1st respondent employed thugs and disrupted the conduct of the 2nd respondent’s primary election which constituted a breach of Article 23 and 28(8) of the 2nd respondent’s Constitution as well as section 92(5) of the Electoral Act.

The 1st respondent argued that he had sufficiently proved that he had resigned from the APC before the conduct of the primary election. This was established through the exhibits attached to his counter-affidavit, particularly exhibit H1- a copy of his notice of withdrawal addressed to the National Chairman of the party dated 26/5/2022, exhibit H2-a copy of the letter of resignation of membership of APC addressed to APC Chairman of Mbake Council Ward dated 26/05/2022, exhibit H4- A CTC of the originating process filed before the Federal High Court, Makurdi Division in suit No. FHC/MKD/CS/62/2022 against the APC for consistently and mischievously reflecting his name in the party’s primary result sheet even after his resignation as a member and withdrawal of ambition to contest the party primary for the State Gubernatorial Election. He also contended that the appellant failed to prove how he was declared the winner of APC Gubernatorial primary and his name forwarded to the 3rd respondent as its flag bearer. On the second issue of the use of thugs to cause chaos at the 2nd respondent’s primary election, the 1st respondent contended that the appellant and his agents were not delegates in the said election and they failed to mention or indicate the names of the delegates that informed them of any harassment/intimidation orchestrated by the 1st respondent. He further contended that the appellant petitioned the 2nd respondent on this allegation and a Committee was set up by the 2nd respondent pursuant to Article 27(8) of the 2nd respondent’s Constitution for the purpose of hearing the petition and the committee thereafter dismissed same for lacking in substance.

The 2nd respondent contended that the appellant failed to prove his allegation of the 1st Respondent’s double nomination as well as the declaratory reliefs sought. He added that the 1st Respondent never contested any primaries of the APC held on 28/5/2022 and 9/6/2022 as he had resigned his membership of the APC before the conduct of the primaries, therefore, the votes allotted to him was an erroneous act of the APC, and he should not be punished for same. He further contended that the issues of procedure for resigning from or joining a political party is an internal affair of a political party which is outside the purview of the jurisdiction of the court. Counsel argued that the appellant failed to establish that the 1st respondent was instrumental to the alleged chaos at the venue of the primary election. At the trial court, the learned trial Judge adopted the two issues for determination formulated by the appellant’s counsel.

After considering the case of the parties, the trial court held that there is no evidence of double nomination by two parties established against the 1st respondent and that the appellant failed to prove the infraction of the provision of section 35 of the Electoral Act by the 1st respondent. Therefore the first issue was resolved in favour of the 1st respondent. On the second issue for determination, the trial court held that the allegation made by the appellant against the 1st respondent that he brought thugs to the venue of the Primary Election of the 2nd respondent on 9/6/2022 who disrupted and interfered with the peaceful conduct of the election is criminal in nature and as such it requires proof beyond reasonable doubt. The learned trial Judge held that the appellant failed to prove the allegation of thuggery against the 1st respondent beyond reasonable doubt. The court further held that the affidavit evidence adduced by the appellant in proof of his allegation are contradictory. The trial court dismissed the appellant’s suit.

The appellant being dissatisfied with the decision of the trial court, filed an appeal to the Court of Appeal via a notice of appeal filed on 22/12/2022. Parties joined issues at the court below. The court below subsumed the 8 issues formulated by the appellant in two issues thus:

(1) Whether the 1st respondent resigned from All Progressive Congress before participating in the Primary Election of Labour Party.

(2) Whether there was a valid primary election.