Independent National Electoral Commission V. Dr. Ahmed Mohammed Salik & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A (Delivering the Lead Ruling)

The 1st Respondent by way of originating summons dated and filed on the 16th day of February, 2007, instituted an action against the Appellant and the 2nd Respondent at the Federal High Court, Abuja, seeking the determination of the following questions:

1. Whether the 1st Defendant can elect to disregard the provisions of the Electoral Act, 2006 and the electoral regulations stipulating the time and form permissible for substitution of candidates
2. Whether the power to substitute a candidate by a political party under Section 34(1) of the Electoral Act 2006 is absolute, unfettered and unqualified.
3. Whether the letter dated 11/1/O7 written by the 1st Defendant to the 2nd Defendant seeking to substitute the Plaintiffs name could be said to have raised cogent and variable (sic) reasons in consonance with Section 34 (2) of the Electoral Act, 2006 to warrant the substitution of the Plaintiffs name to the 1st Defendant.

The 1st Respondent also prayed for the following reliefs:-

i. A DECLARATION that by virtue of the provision of the Electoral Act, 2006, and the 1st Defendant’s Electoral Guidelines, the substitution purportedly made vide the letter dated 11th day of January, 2007 and signed by the 2nd Defendant’s Secretary is null, void and of no effect in law,

ii. A DECLARATION that the non compliance with the prescribed form CF004A as stated in the Electoral Guidelines of the 1st Defendant renders the purported substitution of the Plaintiff as the 2nd Defendant’s candidate for the Dala Federal Constituency in Kano State null, void and of no effect in law.

iii. A DECLARATION that the earlier list of candidates for National Assembly Election submitted on or before 22/12/2006 by the 2nd Defendant to the 1st Defendant remains the valid and subsisting list for April, 2007 National Assembly election

iv. A DECLARATION that it is unconstitutional, illegal and unlawful for the Defendants to change the name of the Plaintiff as the dully nominated candidate by the 2nd Defendant for Dala Federal Constituency in Kano State having accepted the nomination of the Plaintiff by publishing his name in accordance with Section 32 (3) of the Electoral Act, 2006 without compliance with the Electoral Act.

v. A DECLARATION that by virtue of the provisions of Section 34 (2) of the Electoral Act, 2006, the letter dated 11 January, 2007 written by the 2nd Defendant to the 1st Defendant seeking to substitute the Plaintiffs name does not raise any cogent and verifiable reasons sufficient in law to warrant a substitution of the Plaintiffs name by the 1st Defendant.

vi. AN ORDER of Perpetual Injunction restraining the Defendants either by themselves, their agents, privies, servants or howsoever described, from substituting or changing the mane of the Plaintiff as the duty nominated candidate for Dala Federal Constituency Kano State for the April 2007 election into the National Assembly.

Attached to the originating Summons is a Supporting Affidavit of Eighteen (18) paragraph, deposed to by the 1st Respondent’ as well as, four (4) Exhibits marked Exhibits DMS I, DMS II, DMS III and DMS IV By a motion on notice, dated and filed on the 27th day of February, 2007, the 1st Respondent sought leave of the lower court to amend the Originating Summons and same was granted on the 5tn day of March, 2007. The 1st Respondent’s Amended Originating Summons was filed on the 5th day of March 2007 with a further affidavit of ten (10) paragraphs also deposed to by the 1st Respondent wherein was attached Exhibit DM I. The Amended originating Summons raised the following four (4) issues for determination:

1. Whether the 1st Defendant can elect to disregard the provisions of the Electoral Act 2006, and the electoral regulations stipulating the time and form permissible for substitution of candidates,
2. Whether the power to substitute a candidate by a political party under Section 34 (1) of the Electoral Act 2006 is absolute, unfettered and unqualified.
3. Whether the letter dated 11/1/07 purportedly written by the Secretary of the 1st Defendant to the 2nd Defendant seeking to substitute the Plaintiffs name could be said to be proper and in order to nullify the earlier letter of nomination signed by both the Secretary and Chairman of the 2nd Defendant.
4. Whether the letter dated 11/1/07 purportedly written by the 2nd Defendant’s Secretary to the 1st Defendant seeking to substitute the Plaintiff’s name could be said to have raised cogent and verifiable reasons in consonance with Section 34 (2) of the Electoral Act, 2006 to warrant the substitution of the Plaintiffs name by the 1st Defendant.

The 1st Respondent, per his Amended Originating Summons also sought the same reliefs as contained in his original originating summons.

The story of the 1st Respondent, as can be gleaned from his supporting affidavits is that he was nominated and his particulars forwarded to the Appellant as the 2nd Respondent’s candidate for election into the House of Representatives to represent the Dala Federal Constituency of Kano State for the 2007 elections. His name was published but he was later told via a letter purportedly signed by the National Secretary of the 2nd Respondent alone, that his name has been substituted and he is no longer the party’s candidate.

On the 15th day of March, 2007, the lower court Coram B.F.M. Nyako, declared the letter dated 11th January, 2007 and signed by the Secretary alone without the Chairman, null and void and entered judgment in favour of the 1st Respondent.

Aggrieved by the decision, the Appellant appealed to this Honourable Court, vide a Notice of Appeal filed on the 3rd day of March, 2007 containing three grounds of appeal.