Professor Terhemba Shija v. All Progressive Congress & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JCA (Delivering the leading judgment)

This is an appeal against the Judgment of the Federal High Court, Makurdi Division, Coram: Hassan Dikko J., in suit No. FHC/MKD/ CS/56/2022: Prof Terhemba Shifa v. APC & Ors. delivered on 24/11/2022, in which the claims of the appellant as claimant against the respondents as defendants were struck out for being incompetent on grounds of locus standi and was also dismissed for lacking in merit.

The appellant was dissatisfied with the said judgment and had appealed against it vide notice of appeal filed on 5/12/2022 on 10 grounds of appeal. See pages 1122 – 1135 in vol. 2 of the record of appeal.

The record of appeal was compiled and transmitted to this court on 7/12/2022. The parties filed and exchanged their briefs, which were adopted as their arguments at the hearing of this appeal on12/1/2023.

The appellant was represented by Ken C. Ikonne, Esq., appearing with Joseph Henkyaa, Esq., Joseph Agbo, Esq., A. A. Abogede, Esq. and Michael Okejinmi, Esq. The 1st respondent was represented by Matthew Burkaa SAN, appearing with I. B. Ahmad Esq., Dennis Ogaza, Esq., Emmanuel Agwungwu, Esq., Haliru A. Gmabo, Esq., Azaki B. Bieshi, Esq. and Saratu O. Othman, Esq. The 2nd respondent was represented by Usman O. Sule SAN with V. A. Uhamber, Esq., Mike Agba Esq., Timothy Dim, Esq., Mallam Ikegh, Esq., E.C. Hundu, Esq., Christie Uji, Esq., R. O. Adakole, Esq., S. D. Swem, Esq., P. D. Adi, Esq., S.A. Akpehe Esq., A. O, Atubu Esq., and U. P. Ugo Esq. The 3rd respondent, though duly served with hearing notice on 11/1/2023, was not represented by counsel.

By an originating of summons filed on 10/6/2022 before the lower court, the appellantas claimant had commenced an action against the as respondentsdefendants seeking the resolution of the following questions, namely:

1. Whether the report of the 1st defendant’s Gubernatorial Primary Appeal Panel attached to the affidavit in support of the originating summons as exhibit D does not constitute a vital admission – against – interestvindicating the plaintiff’s affidavit evidence that no direct primary election of any sort whatsoever was conducted by the 1st defendant anywhere in Benue State before nominating the 2nd defendant as the governorship candidate of the 1st defendant whose name is to be submitted to the 3rd defendant for the 2023 Governorship election in Benue State.
2. Whether the failure by the 1st defendant, having expressly adopted the direct primary mode, to hold direct primaries in designated centres in the 276 council wards of Benue State before nominating the 2nd defendant its gubernatorial candidate for the Governorship election to be conducted by the 3rd defendant is not a contravention of section 84(4)(a) & (b) of the Electoral Act, 2022.
3. Whether the nomination of the 2nd defendant by the 1st defendant as its governorship candidate for the 2023 Governorship election for Benue State is not invalid and void, having regard to the 1st defendant’s failure to comply with the provisions of section 84(4)(a) & (b) of the Electoral Act, 2022, as well as Indicator 6, page 3 of the “Procedure for the Conduct of Political Party Primary and Nomination of Candidates for Election” of “INEC Guide for the Conduct of the 2023 political Party Primaries and Nomination of Candidates for Election”, in the conduct of its primary.
4. Whether having failed to strictly comply with the provisions of section 84(4)(a) & (b) of the Electoral Act, 2022 in the conduct of its aforesaid primary, the 3rd defendant was not bound by the provisions of section 84(13) & (14) to mandatorily exclude the 2nd defendant, being the candidate of the 1st defendant that emerged from the offensive primary, from the 2023 Governorship election for Benue State.
5. Whether, not having conducted a primary election at all, as required by law, the 1st defendant is not liable to refund to the plaintiff the Nomination and Expression of Interest Fee of N50 million paid to it by the plaintiff, on the basis of unjust enrichment.

Upon the resolution of the above questions, the claimed against the following reliefs, namely:

1. A declaration that the report of the 1st defendant’s Gubernatorial Primary Appeal Panel, exhibit D, constitutes a vital admission against interest against the 1st defendant showing that no primary election of any sort whatsoever was conducted by the 1st defendant before nominating the 2nd defendant its governorship candidate for the 2023 Governorship election to be conducted by the 3rd defendant for Benue State.
2. A declaration that the failure by the 1st defendant, having expressly adopted the direct primary mode, to hold direct primaries in designated centres in any of the 276 council wards of Benue State before nominating the 2nd defendant its gubernatorial candidate for the 2023 Governorship election in Benue State is a contravention of section 84(4)(a) & (b) of the Electoral Act, 2022.
3. An order invalidating and voiding the nomination of the 2nd defendant as the 1st defendant’s candidate for the 2023 Governorship election in Benue State.
4. An order directing the 3rd defendant to exclude the 2nddefendant, being the candidate of the 1st defendant from the governorship election of Benue State and barring the 1st defendant from fielding any candidate at all for the position of Governor of Benue State in the said election.
5. An order compelling the 1st defendant to refund to the plaintiff the sum of N50 million being the Expression of Interest and Nomination fee paid to it by the plaintiff for participation in the 1st defendant’s Gubernatorial Primary Election that the 1st defendant failed to conduct.
6. A perpetual injunction restraining the 2nd defendant from parading himself as the candidate of the 1st defendant for the governorship election to be conducted by the 3rd defendant for the Benue State in 2023. Pages 1 – 120 in vol.1 of the record of appeal.

Brief statement of fact:

The 1st respondent settled on the direct mode for the conduct of its primaries vide exhibit B served on the 3rd respondent, INEC. The direct mode of primaries, according to the 3rd respondent, is intended to ensure that all aspirants are given equal opportunity of being voted for by members of the party at a designated centre at each ward of the gubernatorial constituency, Benue State, in which there are 276 wards spread across the 23 Local Government Areas of the State, Benue State. The appellantpurchased the 1st respondent’s Expression of Interest and Nomination Form at a fee of N50,000,000. 00 and was cleared by the 1st respondent’s screeningcommitteeas an aspirant. However, between the 27th and 28th of May, 2022, the appellant alleged that no provision was made by the 1st respondent for accreditation or votingg and therefore, voting did not take place.

The 1st and 2nd respondents denied that voting did not take place and asserted that voting did took place after accreditation and at the end of which the 2nd respondent emerged the winner having scored majority of the valid votes cast at the said primaries.

The appellantnot satisfied with the alleged non-holding of the said primaries appealed to the 1st respondent’s appeal panel, which sat on 30/5/2022 and at the conclusion of its exercise upheld the complaint of the appellant and affirmed that no primary election of the 1st respondent took place on 28/8/2022 and recommended that fresh primaries be conducted by the 1st respondent.

The 1st and 2nd respondent denied these assertions and stated that the appeal panel rather found that the said primaries were conducted in substantial compliance with the guidelines of the 1st respondent and was therefore, valid. However, they also stated that re-run primaries were held in only 12 out of the 23 Local Government Ares of Benue State in line with the directives of the National Working Committee of the 1st respondent. The 2nd respondent having polled the majority of the valid votes case at these two primaries was validly declared and returned as duly elected as the 1st candidate for the for the Benue State Governorship in the for the coming 2023 general elections.

The appellant dissatisfied with the 1st respondent failure to comply with the report of its appeal panel had approached the lower court by means of an originating summons.

The parties filed and exchanged affidavit and counter-affidavits and the matter proceeded to trial. At the conclusion of the hearings, the lower court delivered its judgment on 24/11/2022, in which it struck out the appellant’s suit for being incompetent on grounds of locus standi and also dismissed the suit for lacking in merit, hence the appeal. See pages 1096 – 1127 and 1122 – 1135 in vol. 2 of the record of appeal.