Hon. Ahmed Abubakar Ndakene v. Saba Ahmed Adamu & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, JSC (Delivering the leading judgment)

The appellant’s case is that he contested the primary election under the 2nd respondent’s Party (APC) held on 27/5/2022 for Edu/Patigi/Moro Federal Constituency but same was declared inconclusive by the presiding officer, Omar Ahmed, and informed the aspirants that the election would be concluded the next day, 28/5/2022.

Nevertheless, the next day, that he and his supporters were locked out and the purported election was conducted by one Kure Yusuf, wherein the 1st respondent was declared winner having polled 104 votes while the appellant had 50 votes.

The case of the three respondents however is that the appellant, the 1st respondent and other 2 aspirants, being members of the 2nd respondent, partook in the 2nd respondent’s primary election that held on 27/5/2022 and 28/5/2022 for Edu/Patigi/Moro Federal Constituency.

That the election commenced on 27/5/2022 and with the agreement of all the aspirants, it was scheduled to conclude the next day, 28/5/2022. That the election was concluded wherein the 1st respondent emerged winner with 104 delegate votes while the appellant scored 50 delegate votes.

Thus, that the election was monitored by the 3rd respondent (INEC) and the results announced. However, that the appellant who lost, approached the Federal High Court claiming that he was locked out of the venue of the election and therefore sought for a nullification of the election. The two courts below concurrently dismissed the appellant’s case, hence this appeal. He therefore seeks for determination:

1. Whether the lower court was right when it failed to properly consider the affidavit/documentary evidence placed by the appellant to establish the exact date and time of the rescheduled election.
2. Whether having regards to the provision of section 84(5) (c) (i) of the Electoral Act, 2022 (as amended), Article 20 (iv) of the Constitution of the All Progressives Congress, Article 25 of the All Progressives Congress (APC) Guidelines for the nomination of candidates for the 2023 general elections, exhibit INEC 2.D as well as the affidavit of Omar Ahmed, the Presiding/Returning Officer, the primary election for the nomination of candidate into Federal House of Representatives of the All Progressives Congress (APC) conducted on the 28th May, 2022 is not invalid and ought to have been declared so by the lower court.
3. Whether the learned lower court was right when it relied on exhibits SA2 and exhibit F.
4. Whether the application of section 11(1)(b) of the Interpretation Act by the lower court in justifying the removal of Omar Ahmed as the returning officer was proper.
5. Whether the learned lower court can speculate in law to assume the inability of the appellant to have won the election if they were allowed to participate in the concluding part of the primary election.

The 1st respondent distilled these issues for determination:

1. Having regard to question 1 formulated and reliefs 1- 4 sought by the appellant in the originating summons, whether the non-joinder of all the aspirants that participated in the primary election of the 2nd respondent held on 27th and 28th May, 2022, did not render the appellant’s pre-election suit improperly constituted so as to deprive the court of the requisite jurisdiction to entertain the suit as constituted.
2. Having regard to the state of the affidavit and documentary evidence placed before courts, whether the court below was not right in affirming the decision of the trial court that the appellant did not prove that the primary election of the 2nd respondent held on 27th and 28th May, 2022 was inconclusive and invalid.

The 2nd respondent on its part formulated this issue for determination:

Whether considering the nature, facts, circumstances and the applicable laws in the case, the lower court ought not to have upheld the decision of the trial court and this court will not preserve the concurrent decisions of the courts below stating that the appellant in this case failed to prove his case to entitle him to the declarative reliefs sought.

The 3rd respondent framed this issue for the determination of this appeal:

Whether having regards to the facts and circumstances of the case, and in view of the report of the Independent National Electoral Commission, the learned Justices of the Court of Appeal were not right in affirming the decision of the learned trial Judge that the appellant failed to prove his case thereby dismissing the reliefs sought by him in the originating summons.

Issue of incompetence/jurisdiction:

The 1st respondent with the leave of this honourable court was magnanimously granted leave to argue fresh issue of incompetence/ jurisdiction, which he made his preliminary objection and first issue. Being a jurisdictional issue, I shall give it a foremost consideration before delving into the main issue:

Having regard to question 1 formulated and reliefs 1 – 4 sought by the appellant in the originating summons, whether the non-joinder of all the aspirants that participated in the primary election of the 2nd respondent held on 27th and 28th May, 2022, did not render the appellant’s pre-election suit improperly constituted so as to deprive the court of the requisite jurisdiction to entertain the suit as constituted.