Musa Muhammad Usman Obe v. Murtala Abdullahi Abubakar & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

IBRAHIM MOHAMMED MUSA SAULAWA, JSC (Delivering the leading judgment)

The instant appeal is a fall-out of the judgment of the Court of Appeal, Kano Judicial Division, delivered on January 27, 2023 in appeal No. CA/KN/337/2022. By the judgment in question, the court below coram I. G. Mbaba, BM Ugo and U.A. Musale, JJCA, upheld the judgment of the trial Federal High Court, Kano Judicial Division, nullified the nomination of the appellant and ordered for a fresh primary election.

Background facts

The genesis of the instant case is traceable to June 9, 2022. That was the day the 1st respondent filed and instituted the suit (No. FHC/KN/CS/ 158/2022) at the trial Federal High Court vide a writ of summons.

By the suit in question, the 1st Respondent sought the determination of the following reliefs against the appellant and the 2nd 6th Respondents, jointly and severally:

1. Declaration that the indirect primary election conducted by the 2nd, 4th and 5th defendants on the 26th May, 2022 in the Fagge Constituency of Kano State House of Assembly is in the circumstance of this case illegal, undemocratic, void and in gross violation of the extant electoral laws and 2nd defendant’s guidelines.
2. A declaration that the nomination of the 1st defendant as 2nd defendant’s candidate in the 2023 general election in Fagge Constituency of Kano State House of Assembly is arbitrary, illegal, void and in gross contravention of the extant electoral laws and 2nd defendants Constitution and guidelines.
3. An order directing the 2nd defendant to conduct a fresh primary election for Fagge Constituency of Kano State House of Assembly as prescribed by the guidelines of the 2nd defendant for the nomination of candidates for the 2023 general election, the constitution of the 2nd defendant and the Electoral Act.

Or in the Alternative:

A declaration that the 2nd defendant has failed, refused and neglected to field a candidate for the Fagge Constituency of the Kano State House of Assembly in compliance with the guidelines of the 2nd defendant for the nomination of candidates for the 2023 general election, the constitution of the 2nd defendant and the Electoral Act.

In addition to alternative relief in 3 above:

AN ORDER directing the 2nd Defendant to refund and reimburse the plaintiff in the sum of N2,000,000.00 (Two million naira) being the sum for the purchase of nominations and expression of interest forms;

4. An order restraining the 3rd defendant from recognizing or accepting the 1st defendant or any other person as candidate of the 2nd defendant produced from the inconclusive primary election held on the 26th May, 2023 by the 4th and 5th defendants
5. An order for general damages;
6. An order for the cost of this action;
7. And for any such order or orders as this honourable court may deem fit to make in the circumstances.

Pleadings having been filed and duly exchanged by the respective parties, the suit proceeded to trial at the end of which the trial court delivered the vexed judgment to the conclusive effect:

“It is settled law that onus of proving an assertion lies on the person who assets (sic) the fact. And the standard of prove (sic) in civil case is as the balance of probability. The plaintiff therefore has not established his claim to warrant him to the relief sought.

In my respectful view, the defendants have not proven that delegates’ election took place and that the primary election also took place in which the 1st defendant emerged as the candidate. Importantly also is the very conspicuous absence of INEC report indicating that it monitored the primaries.

The absence of such important corrobative evidence leaves much to be desired and renders the evidence of the defendants quite unacceptable.

In the circumstance, I hereby nullify the nomination of the 1st defendant and order that fresh primary be conducted within 14 days from today.”