Sen. Smart Adeyemi v. All Progessives Congress (APC) & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

EMMANUEL AKOMAYE AGIM, JSC (Delivering the leading judgment)

This appeal No. SC/CV/892/2023 is against the judgment of the Court of Appeal delivered on 18-8-2023 in appeal No. CA/ABJ/CV/818/2023 concurring with the findings of facts by the trial Federal High Court in its judgment delivered on 12-7-2023 in suit No. FHC/ABJ/CS/556/2023 that the 1st respondent herein validly conducted a direct primary election of its candidate for the November 2023 general election of governor of Kogi State in all the 239 wards in the state on 14-4-2023, that the 3rd respondent herein was validly elected as 1st respondent’s said candidate and that the appellant’s evidence did not prove his claim.

Two notices of appeal were filed by the appellant to commence this appeal. The first one was filed on 25-8-2023. The second was filed on 29-8-2023.

The appellant’s brief states that it is predicated on the second notice of appeal filed on 29-8-2023. The implication of this is that the initial notice of appeal filed on 25-8-2023 is abandoned. It is therefore hereby struck out.

The parties herein have filed their respective briefs as follows- appellant’s brief, 1st respondent’s brief, 2nd respondent’s brief, 3rd respondent’s brief and appellant’s reply to each respondent’s brief.

The appellant’s brief raised the following issues for determination:

1. “Taking into consideration the categorical pronouncement of the honourable court below that the fundamental issue between parties across the divide is whether a valid primary election was conducted or not: is it not a settled position of law that it is the party who asserts that the said election was conducted that bears evidential burden to party to prove same, and is it not too obvious that the respondents who asserts that the said election was conducted failed woefully to prove that the said election was conducted in AT LEAST 228 Wards out of 239 Wards in issue? (Grounds 1, 2, 3 and 5).
2. Taking into consideration the entire 35 paragraph affidavit of the appellant in support of his originating summons: can it be lawfully and equitably argued that paragraphs 8, 22, 25 and 26 of the said affidavit had any negative impact on the case of the appellant, even if any of these paragraphs contained criminal allegations? (Grounds 4 and 6).”

The 1st respondent raised one issue for determination as follows-

“Whether in view of the appellant’s cause of action, that no direct primary election was held by the 1st respondent on the 14th of April, 2023 for the nomination of its candidate for the scheduled 11th November 2023 Gubernatorial Election in Kogi State vis a vis the evidence led by the 1st respondent to the contrary; the lower Court was right to have dismissed the appellant’s appeal for lacking in merit (Distilled from grounds 1, 2, 3, 4, 5, and 6 of the notice of appeal)”

The 2nd respondent’s brief raised two issues for determination as follows-

1. “Whether the two lower courts’ concurrent findings of facts to the effect that the appellant as the claimant before the trial court failed to discharge the onus of establishing that the Primary Election that produced the 3rd respondent was not substantially conducted in accordance with the Electoral Act, 2022 and his case was, therefore, liable to be dismissed? (This is distilled from grounds 1 and 3 of the appellant’s notice of appeal)
2. Taking into consideration the entire 35 paragraphs affidavit of the appellant in support of his originating summons, can it be lawfully and Equitably Argued that paragraphs 8, 22 and 26 of the said affidavit had any negative impact on the case of the appellant, even if any of these paragraphs contained criminal allegation?”

The 2nd respondent by a motion on notice filed on 12-9-2023 applied for:

1. “An order of this honourable court striking out ground 2 of the appellant’s notice of appeal for being incompetent and invalid.
2. An order of this honourable court striking out all the particulars in support of grounds 1, 2, 3, 4, 5 and 6 as couched and supplied in support of the said grounds of appeal in the appellant’s notice of appeal.
3. An order of this honourable court striking out the appellant’s issue one for being incompetent as it was formulated from an incompetent ground 2 of the notice of appeal.”

The motion states the grounds upon which it is based as follows –

i. Ground 2 on the appellant’s notice of appeal is a mere review by his lordship, devoid of any specific findings or holding of the lower court that can be appealed against.

ii. All the particulars in support of the appellant’s grounds 1, 2, 3, 4, 5 and 6 are either argumentative or conclusions of law or inference.

iii. Particulars in support of grounds of appeal are to state facts and not argument, conclusion or legal inference.”