Hon. Haruna Abubakar Magaji v. Hon. Abubakar Lado & Ors (2024)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, JSC (Delivering the leading judgment)

This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division in appeal no. CA/ABJ/CV/1421/2022, delivered on 9th February, 2023, wherein the court allowed the 1st respondent’s appeal against the judgment of the Federal High Court, Minna Division which had earlier granted the reliefs sought by the appellant as plaintiff, in his originating summons.

The appellant and the 1st respondent are both members of the 2nd respondent (APC) and they both aspired to be its candidate for Gurara/Tafa/Suleja Federal Constituency of Niger State in the 2023 general elections.

The 2nd respondent’s primary election was slated for 27th May, 2022. According to the appellant (who was the plaintiff), the primary election could not be conducted because it was disrupted by violence and other forms of irregularities.

It was his case that the party’s Electoral Appeal Committee recommended that the primary election be cancelled and that a rerun be conducted on 31st May, 2022, which recommendation was approved by the National Working Committee (NWC).

He further averred that another primary election was indeed conducted on 31st May, 2023 wherein he emerged winner after scoring 116 votes as against the 1st respondent’s 4 votes, while the other two aspirants each scored zero. He stated that he was surprised to find out that it was the 1st respondent’s name, rather than his name that was submitted to the 3rd respondent.

It was further stated that there was an internal memo of the 2nd respondent that acknowledged that the 1st respondent’s name was forwarded to INEC in error and that the party’s NWC set up a committee to interface with INEC’s upload committee in order to rectify the error.

It was due to the submission of the 1st respondent’s name to INEC and the publication of same by INEC on 17th June, 2022 and 24th June, 2022 respectively that the appellant instituted the suit before the trial court via an originating summons filed on 24th June, 2022. In the said originating summons, he submitted eight questions for the trial court’s determination and sought the grant of 11 reliefs thus:

“1. Whether upon the combined reading of the 2nd defendant’s guidelines of National and State Houses of Assembly Primaries of the 2nd defendant, as well as section 84 of the Electoral Act, 2022, the 2nd defendant is not bound by the result of the primary election duly conducted by the 2nd defendant’s National Working Committee on 31st May, 2022 for the House of Representatives Primary Elections for Suleja, Tafa and Gurara Federal Constituency wherein the plaintiff was elected as the candidate of the 2nd defendant for the 2023 House of Representatives Elections of Suleja, Tafa and Gurara Constituency.

2. Whether in view of the provisions of section 84 of the Electoral Act, 2022, the 2nd defendant’s Guidelines for the conduct of National and State Houses of Assembly Primary, the 2nd defendant can refuse and/or jettison the result of its primary election conducted by the 2nd defendant’s National Working Committee for Suleja, Tafa and Gurara Federal Constituency on 31st May, 2022 wherein the plaintiff was declared the winner of the said Primary Election.
3. Whether in view of section 84(5) of the Electoral Act, 2022; Articles 20.4 (ii) of the 2nd defendant’s Constitution 2022 (as amended) as well as its guidelines for the conduct of the National and State Houses of Assembly Primaries, the primary election conducted by the 2nd defendant’s National Working Committee for Suleja, Tafa and Gurara Federal Constituency held on 31st May, 2022 wherein the plaintiff was declared the winner of the said Primary Election was done in compliance with the Electoral Act, 2nd defendant’s Constitution and guidelines.
4. Whether in view of the provisions of sections 33 of the Electoral Act, 2022, the 2nd defendant’s guidelines for the conduct of the National and State Houses of Assembly Primaries as well as 2nd defendant’s Constitution, whether the 2nd defendant can validly substitute the plaintiff’s name with the 1st defendant as the candidate of the 2nd defendant for the 2023 Elections for House of Representatives of the Suleja, Tafa and Gurara Federal Constituency.
5. Whether in line with the provisions of sections 84 and 29(1) of the Electoral Act, 2022, as well as the guidelines for the conduct of the House of Representatives Elections of the 2nd defendant, the 2nd defendant can submit the name of the 1st defendant to the 3rd defendant as its candidate for the 2023 House of Representative Election for Suleja, Tafa and Gurara Federal Constituency.
6. In view of section 29(1) of the Electoral Act, 2022, the 2nd defendant having conducted its primary election for Suleja, Tafa and Gurara Federal Constituency in accordance with the provisions of the Electoral Act, 2022, the Constitution and guidelines of the 2nd defendant wherein the plaintiff emerged winner, whether the 2nd defendant is bound to submit the name of the plaintiff as its candidate for Suleja, Tafa and Gurara Federal Constituency.
7. Whether the 2nd and 3rd defendants can lawfully recognize the 1st defendant as the candidate of the 2nd defendant when the plaintiff scored the highest number of the lawful votes cast of the 2nd defendant’s primary election for the Federal House of Representative Election for Suleja, Tafa and Gurara Federal Constituency of Niger State.
8. Whether considering the provisions of section 84 of the Electoral Act, 2022, the 2nd defendant’s guidelines for the conduct of the Federal House of Representatives primary elections, the 2nd defendant can lawfully substitute the plaintiff with the 1st defendant when he (the plaintiff) has neither died, resigned, withdrawn nor relinquished his position as the candidate of the 2nd defendant having emerged winner of the primary election for the House of Representatives election for Suleja, Tafa and Gurara Federal Constituency held on 31st May, 2022.”

Reliefs sought:

“1. A declaration that upon the combined reading of the guidelines of the National and State Houses of Assembly Primaries of the 2nd defendant, as well as section 84 of Electoral Act, 2022, the 2nd defendant is bound by the result of the primary election duly conducted by the National Working Committee on 31st May, 2022 at Suleja for Suleja, Tafa and Gurara Federal Constituency of Niger State wherein the plaintiff was elected as the 2nd defendant’s candidate for the 2023 Elections of the House of Representatives for Suleja, Tafa and Gurara Federal Constituency.

2. A declaration that in view of the provisions of section 84 of the Electoral Act, 2022 , and the 2nd defendant’s guidelines for the conduct of the House of Representatives Primary Election, the 2nd defendant cannot refuse and/or jettison the result of its primary election duly conducted by its National Working Committee for the Suleja, Tafa and Gurara Federal Constituency on 31st May, 2022 wherein the plaintiff was declared the winner of the said primary election.
3. A declaration that the 2nd defendant is not empowered by its Constitution and its guidelines for the conduct of the National and State Houses of Assembly Primary as well as the Electoral Act, 2022 to substitute the name of the plaintiff for another person in the Suleja, Tafa and Gurara Federal Constituency primary election held on 31st May, 2022 wherein the plaintiff was declared winner.
4. A declaration that in view of section 33 of the Electoral Act, 2022 as well as the 2nd defendant’s guidelines for the conduct of National and State Houses of Assembly Primaries, the 2nd defendant cannot substitute a candidate for the House of Representatives for Suleja, Tafa and Gurara Federal Constituency except in accordance with the provisions of the guidelines.
5. A declaration that in view of the provisions of section 29 of the Electoral Act, 2022, the 2nd defendant’s guidelines for the conduct of the National and State Houses of Assembly Primaries as well as the Constitution of the 2nd defendant, the 2nd defendant is duty bound to submit the name of the plaintiff to the 3rd defendant as the winner of the primary election for the Suleja, Tafa and Gurara Federal Constituency, when the plaintiff has not resigned, withdrawn, died or relinquished his position as the candidate of the 2nd defendant for the Suleja, Tafa and Gurara Federal Constituency of Niger State.
6. A declaration that by the provisions of section 84 of the Electoral Act as well as the guidelines for the conduct of the National and State Houses of Assembly Primaries of the 2nd defendant, the 2nd defendant cannot submit a name other than the plaintiff’s to the 3rd defendant as its candidate for the 2023 House of Representatives Election for Suleja, Tafa and Gurara Federal Constituency.
7. An order of this honourable court restraining the 2nd defendant from substituting the name of the plaintiff with the 1st defendant as its candidate for the Suleja, Tafa and Gurara Federal Constituency of Niger Sate.
8. An order mandating the 2nd defendant to submit the name of the plaintiff to the 3rd defendant as its candidate that won the primary election for Suleja, Tafa and Gurara Federal Constituency of Niger State.
9. An order mandating the 2nd and 3rd defendants to recognise the plaintiff as the 2nd defendant’s candidate that won the primary election for Suleja, Tafa and Gurara Federal Constituency of Niger State held on 31st May, 2022.
10. An order restraining the 2nd and 3rd defendants from recognising the 1st defendant as the 2nd defendant’s candidate for the Suleja, Tafa and Gurara Federal Constituency of Niger State, in the 2023 general elections, having lost at the primaries held on 31st May, 2022
11. And for further order(s) as the honourable court may deem fit to make in the circumstances of this case.”

Several exhibits were attached to the appellant’s affidavit in support of originating summons and his further and better affidavits, prominent among which are: Exhibits MAM7 (report of the appeal Committee purportedly recommending the cancellation of the primary election of 27th May, 2022 and also recommending the conduct of a rerun on 31st May, 2022); exhibit MAM15 (extract of the NWC meeting held on 30th May, 2022, nullifying the election of 27th May, 2022 and directing the conduct of a rerun to be held on 31st May, 2022) and exhibit MAM 16 (result of the primary election of 31st May, 2022, showing that same was won by the appellant).

The 2nd respondent initially filed a notice of preliminary objection, a counter-affi4avit and a further counter-affidavit opposing the originating summons, and in support of the 1st respondent’s case. However, it subsequently withdrew those processes after it changed its counsel and filed new processes, pitching its tent with the appellant.

The case of the 1st respondent was that the primary election of 27th May, 2022 was peacefully conducted and that the 1st respondent emerged victorious with 88 votes, that one Attahiru Musa Abubakar scored 52 votes, the appellant scored 3 votes and one Ado K. Abubakar scored zero. He stated that the primary election of 31st May, 2022 was not authorized by the party’s NWC and that same was conducted by the Niger State Chapter.