Sen Smart Adeyemi Vs All Progressives Congress (APC) & Ors (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading judgment)

This is an appeal against judgment of the Federal High Court Coram: Hon. Justice J. K. Omotosho delivered on the 12th day of July, 2023, wherein the trial court dismissed the appellants suit in its entirety.

On 25th day of April, 2023, the appellant who was the applicant at the lower court filed a suit vide an originating summons seeking the determination of the following three questions:

1. Having regards to the combined provisions of the law, section 177 (c) of the 1999 Constitution as amended section 29(1) and 84 of the Electoral Act article 20 (iv) of the APC Constitution as amended, whether it is legally permissible for the 1st respondent to sponsor the 3rd respondent as its candidate for 2023 Gubernatorial Election.
2. Having regards to the combined provisions of the law, section 177 (c) of the 1999 Constitution as amended section 29(1) and 84 (4) of the Electoral Act, article 20 (4) of the APC Constitution as amended as well as the facts and circumstances of this case whether its reasonable to hold that a valid direct primary election was conducted for aspirants of the APC for the Gubernatorial Election in Kogi State
3. Having regards to the combined provisions of the law, section 177 (c) of the 1999 Constitution as amended section 29 (1) and 84 (4) of the Electoral Act and the decision of the Supreme Court in Jegede v. INEC & Ors. (2022) 1 WRN 1; LPELR 55481 (SC) and considering the facts and circumstances of this case whether the 2nd respondent can accept the nomination of the 3rd respondent without validly conducting direct primary election for aspirant of the APC Kogi State Gubernatorial Election.

Upon the favourable resolution of the above, appellant prayed the lower court for declaration that the 3rd respondent was not validly nominated as candidate for the 2023 Gubernatorial Election in Kogi State. Also, an order directing the 1st respondent to conduct a fresh primary election by giving all aspirants equal opportunity as prescribed by Electoral Act.

After hearing parties on their respective affidavit evidence, learned trial Judge in a considered judgment delivered on 12th July, 2023 dismissed the suit at pages 1223 1224 of the record of appeal thus:

Clearly, the case of the applicant has no basis in fact and law. It is made as if mere assertions without any concrete proof. In the opinion of this court, the case of the applicant is an invitation of this court to speculate on what really transpired on the 14th of April, 2023. The evidence before this court all show that there was primary election and the 3rd respondent contested for the Kogi State Gubernatorial election in November 2023.

In the final analysis, this court will not allow the will of a few persons such as the applicant to defeat the will of the majority. The case of the applicant is unsupported by evidence and as such, this court has no option than to dismiss that suit for lack of merit. Consequently, the suit of the plaintiff is hereby dismissed.

It is against the above that the appellant appealed to this court through a notice of appeal filed on 20/7/2023 containing five grounds of appeal. Distilled from the said grounds of appeal, the appellant nominated the following three issues for consideration by this court:

1. Whether owing to the totality of the evidence led, the trial court was right to have held that 1st respondent complied with the provisions of its guidelines and indeed, the Electoral Act, 2022 in the conduct of its direct primary election that purportedly produced the 3rd respondent as its Governorship candidate?
2. Whether the learned trial judge was right to have held that the appellant ought to have established his case that is devoid of criminality beyond reasonable doubt.?
3. Whether the trial court was right to rely on the Appeal Committee Report who failed to hear the petition of the appellant?

On behalf of the 1st respondent, a composite sole issue was nominated thus:

Whether in view of the appellants cause of action at the trial court that no direct primary election was held by the 1st respondent in Kogi State on the 14th of April, 2023 for the nomination of its candidate for scheduled 11th November, 2023 Gubernatorial election in Kogi State vis-a-vis the evidence led by the 1st respondent to the contrary, the learned trial Judge was right to have dismissed the appellants suit for lacking in merit.

The 2nd respondent however adopted the three issues nominated by the appellant.

On the part of the 3rd respondent, three issues were crafted thus:

1. Whether the allegation of the appellant that though direct primary election did not hold in any ward in Kogi State, fictitious results were allotted to aspirants, does not amount to criminal allegation requiring proof beyond reasonable doubt.
2. Whether from the fact and circumstances of this case, the trial court was right to hold that the direct primary election the 1st respondent held on the 14th of April, 2023 and that the appellants case is unsupported by evidence.
3. Whether the issue of the appellant being accorded fair hearing by the 1st respondents appeal committee was under contention before the trial court.

I have carefully considered the above formulations alongside the record of appeal but the three issues formulated by the appellant are preferred for being apt and quite apposite for the just determination of the appeal. I will utilize the said three issues of the appellant in determining the appeal. Lest I forget, the 1st respondent has filed a notice of preliminary objection challenging the competence of the appeal. And as such, consideration will be given to the said preliminary objection before delving into the main appeal.

Counsel for the 1st respondent also formulated a sole issue for determination of the preliminary objection as follows: