Hassan Abba Abdullahi V. Umar Yunusa Maitsidau & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the judgment of the Kano State High Court presided over by Hon. Justice Shehu Atiku which was delivered on 13th May, 2008 in suit No. K/493/07 dismissing the Appellant’s suit as Plaintiff therein. The Appellant’s name was initially submitted to the Kano State Independent Electoral Commission after the first party primaries which produced him as the winner. A petition was submitted to the 2nd Respondent by aggrieved members of the Party over some anomalies in the said primary election which was allegedly held outside the Local Government Area without notice given to all the contestants.

The party on the recommendation of the Committee set up to consider the petition rescheduled a fresh primary election and the 1st Respondent emerged the winner. The name of the Appellant was accordingly substituted with that of the 1st Respondent who was screened and cleared by the 3rd Respondent. The Chairmanship election for Makoda Local Government which was subsequently held on the 17th November, 2007 was eventually won by the 1st Respondent who was accordingly sworn-in as the Makoda Local Government Chairman. The Appellant contested the legality of the substitution of his name with that of the 1st Respondent in the light of paragraph 7 of the schedule to the Electoral Regulations of Kano State 2003.

By an originating summons the Appellant sought for the determination of the following questions before the trial court:-

Whether in the light of the provision of paragraph 7 of the schedule to the Electoral Regulations of Kano State, 2003, the All Nigeria Peoples Party can lawfully substitute the name of the Plaintiff with that of the 1st defendant as the party’s Chairmanship candidate for Makoda Local Government Council Election 2007, after the Plaintiff had been screened and cleared by the 3rd defendant.

1. A declaration that the purported substitution/change of the name of the Plaintiff with that of the 1st defendant as the Chairmanship candidate for Makoda Local Government Council Election scheduled for 17th November, 2007, or any other date to which the said election may be postponed, is unlawful and therefore null and void (sic) of no effect.
2. A declaration that the Plaintiff is the Nigeria Peoples Party chairmanship candidate for the Makoda Local Government Council Election Schedule for 17th November, 2007 or any other date to which the said election may be postponed.
3. An order directing the 2nd and 3rd Respondents not to substitute or change in any manner whatsoever, the name of the Plaintiff as the All Nigeria Peoples Party chairmanship candidate for the forth coming Makoda Local Government Council Election.
4. AND for such order or further orders as this court may deem for to make in the circumstance.”

After taking arguments from both counsel in the matter, the learned trial judge in his judgment delivered on 23rd May, 2008, dismissed the Appellant’s claim. Dissatisfied with the stance of the court below, the Appellant filed notice of appeal dated 12th June, 2008 though the date of filing is not apparent on the face of the notice. The said notice contains five grounds of appeal.

In the brief filed by M.N. Duru Esq, of counsel for the Appellant, two issues have been formulated for the determination of this appeal. The two issues are:-

1. Whether or not the learned trial Judge was in error when he held that the Plaintiff had not been cleared by the 3rd defendant when he was substituted by the 2nd defendant notwithstanding the clear provisions of paragraphs 3(1) (2) and (4) of the schedule to the Kano State Electoral Regulation 2003 and the fact that as at the time of the alleged substitution, the period set down by the 3rd Defendant for nomination had closed.
2. Whether or not from the totality of the affidavit evidence before him the learned trial Judge rightly dismissed the plaintiffs claim by placing reliance on Exhibit annexed to the affidavit of the 1st and 2nd Respondents and holding that there was no contradiction in the Evidence of the Respondents.

The learned counsel for the 1st and 2nd Respondents M.L. Ibrahim Esq. however submits three issues as follows:-

1. Whether the lower court was not right when it held that the plaintiff was not cleared by the Kano State Independent Electoral Commission (the 3rd Respondent) before he was substituted with the 1st Respondent.
2. Whether the lower court was not right in holding that the substitution of the Plaintiff was not in breach of paragraph 7 of the schedule to the Electoral Regulation of Kano State 2003.
3. Whether or not from the totality of the evidence before it, the lower court was not right in dismissing the suit and refusing the Plaintiffs prayer.

On his part, the learned counsel for the 3rd Respondent, M.S. Daneji Esq distilled one issue and adopts the 2nd issue of the Appellant also. The said issue formulated states:-

1. Whether the learned Judge was right to have held that the substitution was properly made.
2. The 3rd Respondent adopts issue No. 2 formulated by the Appellant.

From the issues formulated by all the parties in this appeal, it appears to me that this appeal can be properly and effectively determined based on the two issues distilled by the Appellant. I shall therefore determine this appeal based on these two issues.

It was the submission of the learned counsel for the Appellant on the first issue that at no time at all was it ever communicated to the Appellant that he had been disqualified by the screening committee set up by the 3rd Respondent. Instead, the 3rd Respondent by its letter dated 8th November, 2007 clearly indicated that it was not the one that disqualified the Appellant. That from the facts, it is clear that as at the time of the alleged substitution, the Appellant had been cleared and the period for nomination had since closed.

Learned counsel further submitted that by paragraph 4 of the schedule to the Kano State Electoral Regulation, 2003, the screening committee was duty bound to inform a candidate if he was not cleared by the committee and the candidate so informed has a right to appeal to the Electoral Commission if he so desires. More so, that Exhibit MND 5, a document emanating from the 3rd Respondent in response to an inquiry from the Appellant shows that the Appellant was actually screened and cleared by the 3rd Respondent but that it was the 2nd Respondent that knows why he had to be changed. Furthermore, that the legal implication of the failure to inform the Appellant that he was not cleared as required by law is that the Appellant was actually cleared but was subsequently wrongly substituted.

He urged the court to follow the cases of Amaechi V. INEC (2008) All FWLR (pt 409) page 1 and Ugwu V. Ararume (2007) All FWLR (pt 377) 807 and hold that the Appellant was the candidate for the Chairmanship election in Makoda Local Government Area in the election held on 17th November, 2007. He also urged the court to rely on section 16 of the court of Appeal Act end review the evidence and the law before the court to find and hold that the substitution of the Appellant by the 2nd Respondent was wrong and contrary to the provision of the Kano State Electoral Regulation 2003.

On the second issue, the learned counsel for the Appellant contended that Exhibit A1 attached to the affidavit of the 1st and 2nd Respondents contradicts paragraph 7 of the said affidavit in that the said Exhibit dated 2nd October, 2007, purports to be a report of a committee set up to investigate a primary election allegedly conducted by the 2nd Respondent on the 29th October, 2007. Also, that Exhibit C attached to the 3rd Respondents 7 affidavit dated 30th October, 2007 is in conflict with Exhibit C attached to the affidavit of the 1st and 2nd Respondents in that the said Exhibit C attached to 3rd Respondents’ affidavit purports to convey the name of the 1st Respondent as the candidate for the election several days before he was actually nominated since Exhibit C of the 1st and 2nd Respondents’ show that his nomination was held on 4th November, 2007. He urged this court to hold that where there are material contradiction in the evidence of a party, the court should not pick and choose. He cited the cases of Abatan v. Awudu (2004) All FWLR (pt. 236) 215, State v. Yusuf (2007) All FWLR (pt.377) 1001 at 1009 and Onubogu v. State (1974) 1 All NLR. 561.