Hon. Yakubu Abdulganiyu Kayode V. All Progressive Congress & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, OFR J.C.A. (Delivering the Leading Judgment)

This appeal arose from the decision of Federal High Court, (hereinafter referred to as “the lower court”) sitting at Lokoja, delivered on the 30th of September, 2011.

At the lower court the appellant as Plaintiff, filed the suit by way of Originating summons against the present respondents, as defendants thereat, in which he approached the court to determine the under mentioned questions:

1) Whether by virtue of the provisions of Sections 32 and 33 of the Electoral Act, 2010 as amended, the Plaintiff who contested and won the party’s primary election for Kogi State House of Assembly and was returned as the validly nominated candidate in the said elections and whose name was forwarded by the party to the Independent National Electoral Commission for the purpose of contesting the April, 2011 House of Assembly election, can be replaced or substituted by the 1st and 2nd Respondents.

2) Whether by the provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act, 2010 as amended, the 2nd Respondent can validly substitute the name of the Plaintiff who contested and won the party’s primary election for Ijumu Local Government Area Constituency, with the name of the other person (3rd respondent) who never participated in the 1st Respondent’s screening exercise or contested and won the party’s primary election for the purpose of contesting the April 2011 general elections.

3) Whether by the provisions of the Electoral Act 2010, the 2nd Respondent can accept, recognize and maintain on its records, the name of any other person other than the name of the Plaintiff who participated in the party’s primary election, won and was duly nominated by the 1st Respondent for the purpose of contesting the April, 2011 House of Assembly Election for Ijumu Local Government Area Constituency.

The substantive reliefs sought at the lower court by the plaintiff/appellant vide the originating summons, are hereunder reproduced. They read thus:

1. A DECLARATION that the Plaintiff who duly contested, won and was returned by the 1st Respondent in the party’s primary election was validly nominated and returned.
2. A DECLARATION that the purported removal and substitution of the name of the Plaintiff with that of the 3rd Respondent by the 1st and/or 2nd Respondents for the purpose of contesting the April 2011 House of Assembly Election is null and void.
3. AN ORDER of injunction restraining the 1st and 2nd Respondents from recognizing any other person besides the Plaintiff as candidate for the 2011 House of Assembly Election for Ijumu Local Government Area Constituency.

The case of the Appellant is that he is a registered member of the 1st Respondent (ANPP) and that he expressed his interest to contest election into the House of Assembly of Ijumu Constituency under the platform of the 1st Respondent. He complied with the constitution of the 1st Respondent by paying the appropriate fees for nomination, filled the nomination form and was successful in the screening exercise for the primary election. At the primary election, he emerged winner and was returned unopposed. The 1st Respondent upon his emergence as winner forwarded his name to the 2nd Respondent (INEC) by a letter dated January 2011 which was admitted in evidence at the Lower Court as Exhibit A.

The Appellant however avers that after his nomination and despite having his name forwarded to INEC and without the 1st Respondent conducting any other primary election, his name was unlawfully substituted with that of the 3rd Respondent. In support of his case, the Appellant filed a 22 paragraphed affidavit deposed to by himself and to which was attached some exhibits marked Exhibits A, B and C. The Appellant also filed a Further and Better Affidavit of 6 paragraphs, deposed to by him, containing three exhibits; i.e. Exhibits A, B and C.

Conversely, the case of the 1st Respondent is that the Appellant in January 2011 indicated his interest and applied to contest election into Kogi State House of Assembly, Ijumu constituency, but was unable to pay the nomination fee of Two Hundred and Fifty Thousand Naira only. Being the only person as at that time who indicated interest, the 1st Respondent’s National Executive council waived part of the fee for him. He was therefore asked to pay One Hundred and Fifty Thousand Naira only. The Appellant paid Fifty Thousand Naira as part-payment of the waived sum with a promise to pay the balance within seven days.

In furtherance of this, the 1st Respondent averred that the Appellant signed a withdrawal letter which would take effect in case he was unable to pay the agreed balance. The said withdrawal letter was admitted in evidence and marked Exhibit ANPP1. The 1st Respondent further averred that upon the inability of the Appellant to pay the outstanding balance, after letter of demand was served on him by the 1st Respondent, the 1st Respondent acting on the signed withdrawal letter substituted the candidature of the Plaintiff with that of the 3rd Respondent who was able to perfect his nomination process by paying the agreed sum. In support of his case, the 1st Respondent filed a 25 paragraphed counter affidavit deposed to by one Elder Kenneth Elesho, Kogi State Secretary of the 1st Respondent wherein he attached 6 Exhibits, namely Exhibits ANPP 1, ANPP 2, ANPP 3, ANPP 4, ANPP 5 and ANPP 6.

With regard to the 3rd Respondent, his case is that he became aware of the vacancy of the House of Assembly, in Ijumu Constituency sometime in January 2011 and he indicated his interest. He then proceeded to pay the sum of One Hundred and Fifty Naira demanded of him and upon that he was issued the nomination form which he filled and returned. He thereafter underwent a successful screening exercise as a candidate for the 1st Respondent and was also issued with the 2nd Respondent’s Form 001 which he filled and returned and his name was subsequently forwarded to the 2nd Respondent as the nominated candidate of the 1st Respondent. In support of his case, the 3rd Respondent filed a 15 paragraphed counter affidavit, deposed to by the 3rd Respondent himself and containing two exhibits; i.e. Exhibits XX1 and XX2.

The 2nd Respondent filed no counter affidavit at the lower Court. Hearing then commenced at the lower court and at the conclusion of the trial, the learned trial Judge, in a considered judgment dismissed the suit of the Appellant as having not been established and for being lacking in merit.

The Appellant became piqued by this decision and has appealed to this Honourable Court vide a Notice of Appeal filed on the 6th of December, 2011 containing three grounds. With leave of this court the appellant also filed five Additional Grounds of Appeal.