Hussaini Isa Zakirai Vs Salisu Dan Azumi Muhammad (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

This Appeal relates to a pre-election matter, and it turns substantially on the issue of service outside jurisdiction. The first Respondent filed an action by way of originating Summons against the Appellant and other Respondents at the Federal High Court, Kano [trial Court], wherein he presented the following question for determination-

Whether the 3rd Defendant can publicize, recognize and include the name of the 2nd Defendant or deal with him as the candidate of 1st Defendant (APC) to contest election into Kano State House of Assembly representing Gabasawa Constituency of Kano State scheduled to take place on 28/2/2015, the plaintiff having scored the majority of the lawful votes cast at the primary election held by the 1st Defendant on 2/12/2014 in Gabasawa Local Government Area of Kano State for the purpose of presenting a candidate of the Party for election into Kano State House of Assembly to represent Gabasawa Constituency of Kano State.

The First Respondent, as Plaintiff, also claimed the following reliefs –

1. An order of this Hon. Court directing 3rd Respondent to

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publicize, recognize and include the name of the Plaintiff as the 1st Defendant’s rightful candidate for Gabasawa Constituency of Kano State House of Assembly in the general election scheduled to take place on 28/2/2015.

2. A declaration of Court that the Plaintiff is the rightful candidate of the 1st Defendant who will represent Gabasawa Constituency of Kano State House of Assembly in the general election scheduled to take place on 28/2/2015 having scored the majority of votes cast at the primary election conducted by the 1st Defendant on 2/12/2014 in Gabasawa Local Government Area [LGA] of Kano State for the purpose of producing a candidate of the 1st Defendant for the election.
3. An order of Court restraining the Defendants either through their agents, privies or whosoever claiming on their behalf, from recognizing, treating, publishing, listing or considering the name of 2nd Defendant (sic) as 2nd Defendant’s (sic) candidate to represent Makada constituency of Kano House of Assembly in the general election scheduled to take place on 28/2/2015.

The Originating Summons was filed on 5/2/2015, and the addresses endorsed thereon for service on

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the second and third Respondents, who were the first and third Defendants respectively, were situated at the Federal Capital Territory, Abuja. However, by Motion Ex-parte filed on the same day 5/2/2015, the first Respondent sought and was granted leave to serve the other Parties by substituted means – the second Respondent, Appellant, and fourth Respondent through “Barrister Haruna Falali”, Legal Adviser of Kano State Branch of APC, and the third Respondent [INEC] through its office situated in Kano.

Upon being served, second and fourth Respondents entered unconditional appearance, while the Appellant and third Respondent entered conditional appearance. Initially, one Nura Zubair, Assistant Legal Adviser of APC in Kano State, deposed to a Counter Affidavit filed on 16/2/2015, wherein he averred that he had consent of the second and fourth Respondents to do so. He further averred that –

5. The 1st Defendant indeed conducted primary election into the Kano State House of Assembly Gabasawa constituency.
6. Both the Plaintiff and the 2nd Defendant participated in the primaries having satisfied all the conditions set out by the 1st Defendant

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and the Plaintiff scored 216 votes while the 2nd Defendant scored 32 votes.

7. The 1st Defendant forwarded the name of the Plaintiff. The Plaintiff having won the primaries and having satisfied all the conditions set out by the 1st Defendant.
8. The Plaintiff is the rightful candidate for the election into the House of Assembly of Gabasawa Constituency.

Later, fourth Respondent himself deposed to a Further and Better Counter-Affidavit filed on 27/2/2015, wherein he averred that as the Chairman of APC, Kano (the 1st Defendant), he did not give the said Nura Zubair authority to depose to the earlier counter affidavit “as they do not represent the true position of facts”; and furthermore-

5. That I, as the Chairman of the 1st Defendant knows as a fact that no primary election into the House of Assembly of Gabasawa constituency was conducted by the 1st Defendant on 2/12/2014.
6. That the 1st Defendant did not send the name of anybody to the 3rd Defendant in respect of the said Gabasawa House of Assembly Primary Election.
7. That the Counter Affidavit deposed to by Nura Zubair was done without my consent and knowledge and that of the 1st

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