Murtala Isa v. All Progressives Party Congress (APC) & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

AMINA ADAMU AUGIE, JSC (Delivering the leading judgment)

The appellant and third respondent are members of the first respondent and they both aspired to become the party’s candidate in the 2023 General Election for the Kankara/Faskari/Sabuwa Federal Constituency seat of Katsina State.

After the third respondent was declared winner of the Primary Election conducted by first respondent on 27/5/2022, the appellant filed the action that led to this appeal at the Federal High Court,

wherein he prayed the court to determine three questions, and sought some consequential reliefs, including:

(iv) An order- – – setting aside and/or nullifying the purported nomination and/or submission of the name of the 3rd defendant to 2nd defendant as the winner and candidate for the Kankara/Faskari/Sabuwa Constituency of Katsina State for the 2023 Federal House of Representatives General Election, having failed to conduct a Primary Election as provided by the extant laws regulating election matters in Nigeria.

The appellant’s case, as averred in his affidavit in support of the originating summons, is that the primaries purportedly conducted by first respondent on 27/5/2022 did not hold as scheduled since third respondent engaged thugs to disrupt the exercise, which means, he did not emerge as the rightful candidate. He particularly averred as follows in paragraphs 8 to 14 of the said affidavit –

“8. Prior to 27/5/2022 being the day scheduled for the Primary Election – – I have been seeking audience to interact/discuss with the delegates, but I couldn’t see them.

9. I later read the news from Umar Tata Tsauri (who was also a Gubernatorial candidate in Katsina State) on his Facebook page that he saw the delegates where they were concealed by the 3rd defendant at his house and others at the house of one Commissioner for Environment by name Hamza Sule at Dallaji Road, behind Government Chalet. When I saw this, I was shocked, then I caused a petition to be written to the 1st respondent’s Local Organizing Committee, so they will be aware of this unfortunate incident. [Copy of the complaint annexed as exhibit 5]
10. I was unable to reach out to any of the delegates, both the ones from my Local Government, and the ones from other Local Government.
11. The 3rd defendant’s thugs and hoodlums were shouting and chanting “Dukwandabazaizabi Tafokiba to zaigani”, meaning (anyone who refused to vote for Tafoki shall see the consequence), as a result of which a large number of my supporters and other party members present on that day ran for their dear life. The delegates were not at the venue of the election and myself and few other people waited despite the fear for our lives until the evening of that day, but no Primary Election took place. [The pictures of the thugs attached as exhibits AB 6]
12. I was fully prepared and ready to participate in the said Primary Election, that on the day of the election being 27/5/2022, myself and other people were waiting at the venue of the Primary Election to witness the accreditation and the election process. To my greatest dismay, there was no election up till about 5.50pm in the evening, when the 3rd defendant came with some men, who were armed with matchet and other dangerous weapons, and was declared winner, while I was declared the runner up of the purported Primary Election, which did not take place on 27/5/2022, having purportedly scored only two votes.
13. On the same 27/5/2022, the 3rd defendant brought thugs and hoodlums in about 10 buses, all armed with arms and ammunitions, such as guns, knives, cutlasses, sword, arrow and spears dragging and displaying various arms at the election venue. [Copy of the pictures of the thugs attached and marked as exhibits AB 7]
14. As a result of 3rd defendant’s actions as stated in the above paragraphs and being a law-abiding citizen, I decided to follow the lawful way by instructing my lawyer to write a petition dated 27/5/2022 to the APC National Appeal Committee, to complain to the Committee about the incident. [Copy attached as exhibit AB 8]”

In his judgment delivered on 24/11/2022, the learned trial Judge, Shittu, J., posited that “the logical question is: did plaintiff prove this case on the balance of probability as required by the Evidence Act? And further stated as follows:

“I have critically read all the averments of the plaintiff and that of his deponents vis-a-vis that of the defendants. I have also once again studied the Exhibits attached to the parties’ affidavits and the counter-affidavits. Consequently, I find as a fact that the Primary Election actually took place on the appointed date on 27/5/2022. In coming to this conclusion, I have had regards to the conflicting averments in plaintiff’s affidavits. For instance, Abubakar Hamisu averred in his paragraph 4 – -(sic) that the “3rd defendant/respondent participated in the said Primaries conducted by the 1st respondent on 27/5/2022 and was declared to be the winner of the primary election” but Nuhu Yahaya stated the opposite of these averments as he averred or stated as follows in his paragraph 12: “That to the best of my knowledge, the primary election scheduled to take place on 27/5/2022 did not in any way take place” – – -(sic) I also find as a fact that both the plaintiff and 3rd defendant were involved in the hiding of delegates 2 – 3 days before the day fixed for the Primary Election. In fact, it is glaringly clear from the averments that plaintiff hid all the delegates from his Kankara Local Government Area while 3rd defendant hid those from his home Faskari Local Government Area and also delegates from Sabuwa Local Government Area. It is also true as per averments of Amina Adamu (F) that the 3rd defendant hid and brought greater number of delegates to the venue of the election than the plaintiff. This issue in my view is very dicey as neither the Electoral Act nor the guidelines of 1st defendant have ever contemplated that aspirants will hide delegates in order to get advantage over their rival in the contest.

Be that as it may, it appears to me – -(sic) that all the delegates, who were hidden, whether by the plaintiff or 3rd defendant willingly and voluntarily offered or submitted themselves or agreed to be so hidden or kept somewhere for their own personal reasons and this cannot be questioned. Therefore, for these reasons and the fact that hiding of delegates is not or prohibited or made an offence by any law, I will say no more on this.

However, the argument or submission of – -(sic) 1st & 3rd defendants that hiding of delegates is a political strategy to win an election may appear to be a good one. It is also my view that all the captive delegates voted willingly and voluntarily without any duress and the reasons is simple: you can drive a horse to a river but you cannot make it drink the water unless on its own will. So, I disagree with Amina Adamu, witness of plaintiff, who said the delegates were forced to vote for 3rd defendant.

Finally, on the issue of thugs, it is worthy of note that defendants controverted plaintiff’s averments and also stated that 3rd defendant did not bring thugs to the venue – -(sic) It is also true as argued by 1st and 3rd defendants that apart from the averments of the plaintiff, which were controverted, there is nothing in the photo i.e., exhibits AB6 & AB7 to link them to the 3rd defendant.

There is also nothing to state the place or the purpose for which they were snapped/taken. To make matter worst for the plaintiff, the photographer(s), who snapped the pictures, did not depose to any affidavit let alone state when and where the pictures were snapped. In the circumstances, therefore, the court has no option than to agree with the submission of – – 1st and 3rd defendants that exhibit AB6 & AB7 only gives room for speculations on how they came about. The law is quite settled as rightly argued by – – (sic) 1st and 3rd defendants that court of law decides cases on facts and law and not on conjuncture and speculations. It is also a settled principle of law – – (sic) that a party seeking for declaratory and injunctive reliefs must produce cogent and compliable evidence upon which the court will rely and grant the reliefs – – – (sic) Therefore, having examined the evidence of the plaintiff vis-a-vis that of the defendants, I am not swayed by the plaintiff that the 1st defendant conducted her primaries on 27/5/2022 in breach of her Constitution and Guidelines. In other words, the plaintiff did not prove his case as required by law and I so hold. However, assuming without conceding that the Plaintiff made a good case that 3rd defendant deployed thugs to the venue of the election and also hidden the delegates, the follow questions should be:

did the defendants rebut their evidence by proving that election actually took place on the day fixed for the election? – – – (sic) Learned counsel for the 2nd defendant referred to their counter-affidavit, which he qualified as affidavit of facts, particularly the exhibits attached, and submitted that there is no iota of doubt that 1st defendant conducted her Primary Election and the 3rd defendant emerged victorious. Counsel pointed out again that the 2nd defendant [INEC] through her officers monitored the Election and at the end of the election compiled exhibits INEC 1 – INEC5. Council submitted further that exhibits INEC 2 – INEC 5 are the List of Accredited Delegates, List of Names of Aspirants, Result of the Elections duly signed by the Electoral Chairman and Secretary and Report of the 2nd defendant, who monitored the election respectively. However, apart from the initial depositions in the supporting affidavit, the Plaintiff or his Counsel did not fault all these submissions. In Yonwuren v. Modern Sinq Ltd. (supra), it was held that where there is a conflict between oral and documentary evidence the later shall be preferred. Also, in Agbareh v. Mimra (2008) 12 WRN 1; (2008) 2 NWLR (Pt. 1071) 278 it was held that documentary evidence is the best form of evidence because documents do not tell lies. In the final analysis therefore, I am of the considered view that the plaintiff did not prove his case even on the balance of probability not to talk of beyond reasonable doubt. For this reason, therefore, the case of the plaintiff ought to be and is hereby dismissed for lack of proof.”