Jabiru Yusuf Yau-yau v. All Progressives Congress & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ADAMU JAURO, JSC (Delivering the leading judgment)

The appeal herein is against the judgment of the Court of Appeal, Kaduna Division delivered on 3rd February, 2023 in appeal No. CA/K/303/2022, wherein the court dismissed the appellant’s appeal and affirmed the judgment of the Federal High Court, Katsina Division delivered on 7th December, 2022 in appeal No. FHC/KT/CS/39/2022, which had earlier dismissed the appellant’s suit.

Summary of facts

The appellant and the 2nd respondent are members of the 1st respondent and they both participated, alongside four other aspirants, in its primary election for the nomination of the 1st respondent’s candidate for Batsari/Safana/Danmusa Federal Constituency of Katsina State.

A total of 160 delegates were eligible to vote at the primary election and at the conclusion of the primary election conducted on 27th May, 2022, the 2nd respondent won with 50 votes while the appellant had 49 votes. The other four aspirants namely, Umar Gambo, Abdulmajid Dabo, Muntari Abdu, and Faruq Garba Ruma had 46, 11, 3, and 1 vote(s) respectively, totaling 160 votes.

The appellant was dissatisfied with the 2nd respondent’s emergence as the 1st respondent’s candidate and he therefore instituted a suit before the trial Federal High Court seeking the resolution of the following questions and the grant of the accompanying reliefs:

“a. Upon careful perusal of section 119(1) of the Electoral Act, 2022 (as amended) and article 20(iii) & (iv) of the All Progressives Congress (APC) Constitution, whether voting by proxy is legally recognized in the Nigerian Legal System and whether same can be the basis upon which a candidate can be declared as a winner in any Election; Primary or general election.

b. Whether the 2nd defendant can be said to have been validly declared the winner of the primary election of Batsari, Safana and Danmusa Federal Constituency for the House of Representatives, conducted by the 1st defendant on the 27th day of May, 2022, notwithstanding the fact that five delegates who were absent in the said Primary Election voted by proxies in favour of the 2nd defendant, in consideration of section 119(1) of the Electoral Act, 2022 and article 20 of the All Progressives Congress (APC) Constitution.”

Reliefs:

“1. A declaration that only 155 out of the total of 160 delegates are eligible to vote during the primary election for Batsari, Safana and Danmusa Federal Constituency conducted by the 1st defendant on the 27th May, 2022 having been present during the said primary election.

2. A declaration that 5 delegates vote out of the 160 total delegates votes cast during the primary election for Batsari, Safana and Danmusa Federal Constituency conducted by the 1st defendant on the 27th May, 2022 are invalid votes, 5 of the delegates having been unavoidably absent during the primary election.
3. A declaration that the 2nd defendant cannot be validly declared the winner of the Primary Election of Batsari, Safana, and Danmusa Federal Constituency conducted by the 1st defendant on the 27th day of May, 2022 having scored 50 delegates votes 5 out of which were questionable having regard to the fact that non-delegates were smuggled in to vote by proxy on behalf of the 5 delegates who were absent on the day of the said Primary Election, by the 2nd defendant, an act, that is in clear contravention with the provision of section 119(1) of the Electoral Act, 2022, and the extant provision of article 20(iii) & (iv) of the All Progressives Congress (APC) Constitution.
4. A declaration that the claimant is the winner and the flag bearer of the 1st defendant representing Batsari, Safana, and Danmusa Federal Constituency for House of Representatives to contest in the 2023 General Election having scored 49 of the total lawful delegates vote cast during the primary election.
5. An order of this honourable court disqualifying the nomination, candidature and further clearance of the 2nd defendant as the candidate and flag bearer of the 1st defendant in the forthcoming 2023 General Election for Batsari, Safana and Danmusa Federal Constituency in the House of Representatives of the National Assembly.
6. An order of this honourable court restraining the 1st defendant from submitting the name of the 2nd defendant and from further parading him as its candidate in the forthcoming 2023 general election of Batsari, Safana and Danmusa Federal Constituency in the House of Representatives of the National Assembly.
7. An order of this honourable court directing the 1st defendant to submit the name of the claimant as the winner and flag bearer of the 1st defendant in the upcoming 2023 General Election to contest for the House of Representatives representing Batsari, Safana and Danmusa Federal Constituency.
8. An order of this honourable court directing and mandating the 3rd defendant to accept the name of the claimant as the winner and flag bearer of the 1st defendant in the upcoming 2023 General Election to contest for the House of Representatives representing Batsari, Safana and Danmusa Federal Constituency.

Alternatively,

9. An order of this honourable court nullifying the primary election conducted on the 27th May, 2022 for Batsari, Safana, and Danmusa Federal Constituency and order the 1st and 3rd respondents to conduct another fresh primary election, the former having been marred by irregularities that can affect the result.”

The originating summons was supported by an affidavit deposed to by the appellant as well as a written address. The appellant also filed a further and better affidavit in response to the counter-affidavits filed by the 1st and 2nd respondents, as well as a further and better affidavit in response to the 3rd respondent’s counter-affidavit.

In opposition to the originating summons, the 1st and 2nd respondents filed separate counter-affidavits as well as a counter-affidavit deposed to by the 1st respondent’s Director of Administration in Katsina State. All the counter-affidavits were supported by a joint written address filed by their counsel. The 3rd respondent on its part, filed an affidavit of facts, supported by a written address.

The grouse of the appellant was that, according to him, when he returned home after the successful conduct of the primary election, three of the delegates meant to vote at the primary election, namely: Bello Mamman, Sulaiman Sallau and Zubairu Yahaya visited him and apologized for their inability to attend the primary election due to reasons beyond their control.