Senator Yakubu Garba Lado & Ors V. Congress For Progressive Change (Cpc) & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

The appeals are against the judgment of the Court of Appeal Holden at Abuja in appeal No. CA/A/232/2011 delivered on the 20th day of April, 2011 in which the court allowed the appeal of the present 1st – 3rd respondents against the judgment of the Federal High Court, Holden at Abuja in Suit No. FHC/ABJ./CS/126/2011 delivered on the 25th day of February, 2011 granting the claims of the plaintiffs, now appellants before this court.

On the 3rd day of February, 2011 the appellants in SC/157/2011 caused an originating summons to be issued against the present respondents therein in which they called for the determination of the following questions:-

”1. WHETHER having regard to Section 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 85 and 86 of the Electoral Act, 2010 (as amended), the 1st defendant is not bound to submit to the 4th defendant the names of the plaintiffs who were screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election held on the 15th day of January, 2011 by the Katsina State Congress for offices of Governor, Senate, House of Representatives and State House of Assembly for the 2011 general election, which primaries were witnessed and endorsed by the INEC designated Monitoring Team.

2. WHETHER having regard to the combined effect of Section 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 87(1)(4) and (6) of the Electoral Act, 2010 (as amended) which among other things guarantee, recognize and prescribe the mode of conducting party primaries only on democratic principles or basis and which enjoins parties to submit to Independent National Electoral Commission (INEC) the names of candidates who emerged winners at state congress of the party, the 1st and 2nd defendants have the power to disqualify or reject plaintiffs candidature which was the choice of the delegates at the state congress, and adopt instead by arbitrary fiat, the 6th defendant for the office of Governor of Katsina State and some other unknown persons as candidates of the 1st defendant for Katsina State Constituencies in respect of Senate, House of Representatives and Senate (sic) (State) House of Assembly for the 2011 general elections.
3. WHETHER in view of Sections 33 and 87 (4) of the Electoral Act, 2010 (as amended) and having acquired vested interest in the party ticket as the duly elected candidate of 1st defendant in the primary election of the 1st defendant, conducted at the Katsina State Party Congress held on 15th January, 2011 general election, the plaintiffs candidature can be rejected, disregarded, revoked, reversed, annulled, reassigned to, or be substituted with 6th defendant, in respect of governorship and or any other unknown persons for Katsina constituencies in respect of Senate, House of Representatives and State House of Assembly for the 2011 general elections when the plaintiffs being still alive, have not withdrawn their candidature to contest on the platform of the 1st defendant at general election schedule to hold in April, 2011 for the elective offices.
4. IF QUESTION 3 is answered in the negative, whether having regard to Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the plaintiffs, are in the eyes of the law, the candidates of the 1st defendant, entitled to all the benefits of their candidature as flag bearers of the 1st defendant, eligible to contest and be voted for on the platform of the 1st defendant in respect of the office of the Governor, Senate, House of Representatives and State House of Assembly in Katsina State at the 2011 general election”.

In consequence of the above questions, the plaintiffs claimed the following reliefs.-

A DECLARATION that by virtue of Section 221, 222 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 85 and 86 of the Electoral Act, 2010 (as amended) the 1st defendant the name of plaintiffs who were screened, cleared and duly elected by majority of lawful votes cast by accredited delegates at the primary election or congress in Katsina State Chapter of Congress for Progressive Change (CPC) held on 15th January, 2011 to elect the Katsina State party candidates for elective offices of Governor, Senate, House of Representatives and State House of Assembly in Katsina State at the 2011 general election which primaries were witnessed and endorsed by the INEC designated Monitoring Team.

2. A DECLARATION that the combined effect of Section 221, 222, 223 and 228 of the Constitution of the Federal Republic of Nigeria, 1999 and Section 87(1)(4) and (6) of the Electoral Act, 2010 (as amended) which among other things guarantee, recognize and prescribe the mode to conducting party primaries only on democratic principles or basis, and enjoins parties to submit to the Independent National Electoral Commission (INEC) the name of candidates who emerged winner at the State Congress of the party the 1st and 2nd defendants have No power to disqualify or reject plaintiffs being the choice of the delegated at the Katsina State Congress held on 15th January, 2011 in respect of the elective offices of Governor, and constituencies of Senate, House of Representatives and State House of Assembly for the 2011 general elections.
3. A DECLARATION that the 1st and 2nd defendants cannot by arbitrary fiat or through any illegal method adopt the 6th defendant for the office of Governor of Katsina State and any other unknown persons as candidates of the 1st defendant for Katsina State Constituencies in respect of Senate, House of Representative and State House of Assembly for the 2011 general elections.
4. A DECLARATION that in view of Sections 33 and 87 (4) of the Electoral Act, 2010 (as amended), and having acquired vested interest in the party ticket as the duly elected Gubernatorial Senatorial, House of Representatives and State House of Assembly by being candidate of 1st defendant in the primary election of the 1st defendant, conducted in Katsina, Katsina State, the plaintiffs’ respective candidature CANNOT be rejected, disregarded, revoked, reversed, annulled re-assigned to, or be substituted with 4th defendant or any other person, when plaintiffs is still alive, and have not withdrawn their respective candidature to contest on the platform of the 1st defendant in the general election scheduled to hold in April, 2011 for the said elective offices.
5. A DECLARATION that by virtue of Section 221 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the plaintiffs are in the eyes of the law, the candidate of the 1st defendant, entitled to all the benefits of their candidature as flag bearers of the 1st defendant, eligible to contest and be voted for on the platform of the 1st defendant in respect of the offices of Governor, Senate, House of Representatives and State House of Assembly in Katsina State at the 2011 general election.
6. A DECLARATION that any acts, omission, commission, failure, refusal or neglect, by 1st, 2nd and 3rd defendants to take all necessary steps required under the Electoral Act, 2010 (as amended) to ensure that plaintiffs’ names are duly submitted and published before the date of the election and placed on the ballot for use in the conduct in Katsina State Gubernatorial election in the 2011 general election is illegal and unconstitutional.
7. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants, their servants, agents and or privies from recognizing, or submitting to 4th defendant the name of any person other than that of 1st plaintiff and his nominated running mate in person of ABDULAZIZ MUSA YAR ADUA as candidate of 1st defendant for the office of Governor and Deputy Governor of Katsina State respectively at the 2011 general election.
8. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd defendants’ their servants, agents and or privies from recognizing, or submitting to 4th defendant the name of any person other than that of 2nd – 47th defendants candidates of 1st defendant for the elective offices of Katsina State constituencies in the Senate, House of Representatives and House of Assembly respectively at the 2011 general election.
9. AN ORDER OF PROHIBITORY INJUNCTION restraining the 4th defendant, its agents, servants or privies from accepting and giving recognition to any other persons other than the 1st plaintiff and his nominated running mate in person of ABDULAZIZ MUSA YAR ADUA as Gubernatorial and Deputy Gubernatorial candidates of the 1st defendant at the 2011 general election into the office of the Governor of Katsina State.
10. AN ORDER OF PROHIBITORY INJUNCTION restraining the 4th defendant, its agents, servants or privies from accepting and giving recognition to any other persons other than the 2nd – 45th plaintiffs as candidates of the 1st defendant at the 2011 general election into the legislative offices of the various constituencies in Katsina State.
11. AN ORDER OF MANDATORY INJUNCTION compelling the 4th defendant to provide for and place on the ballot paper to be used for the Governorship, Senate, House of Representatives and State House of Assembly election in Katsina State at the 2011 general election, the name of plaintiffs as candidates of 1st defendant in respect of the offices to which party primaries tickets; in the event that 1st defendant fail or neglect to so submit the aforesaid names as its candidates for the offices”.

As stated earlier in this judgment, the trial court granted all the reliefs of the plaintiffs/appellants resulting in an appeal by the 1st – 3rd respondents in this court which appeal was allowed and the judgment of the trial court set aside. The instant appeals are against that judgment.

The issues for determination, as identified by learned senior counsel for the appellants in SC/157/2011 in the appellants’ brief deemed filed on 15th November, 2011 and adopted in argument on even date, are as follows:-

1. Whether in view of the uncontroverted evidence before the lower court, their Lordships correctly constructed and applied the relevant provisions of the constitution and the electoral act canvassed by the appellants before them, in reversing the decision of the trial court that the 2nd – 43rd appellants herein were the duly nominated candidates of the 1st respondent for the various national and state legislative offices in the general elections of April, 2011 in Katsina State;
2. Whether the learned justices of the Court of Appeal did not occasion a miscarriage of justice when they discountenanced the appellants’ respondents notice, notwithstanding that the lower court had granted leave in respect of the said respondents’ notice, of the 4th of April, 2011;
3. Whether the lower court was not wrong in relying on materials contained in incompetent processes before the court to reverse the trial courts judgments

On the other hand, learned senior counsel for the 1st – 3rd respondents in the brief of argument filed on 31st October, 2011 formulated the following two (2) issues for determination:-

1. Whether considering the evidence on record before it, the relevant provisions of the constitution of the Federal Republic or Nigeria, 1999, the Electoral Act, 2010 (as amended) and the constitution of the Congress for Progressive Change (CPC), the Court of Appeal correctly held that the appellants were not validly nominated candidates of the 1st respondent for the various offices they aspired to in Katsina State in the 2011 general election
2. Whether the court of Appeal rightly made use of the processes contained in the record before it in arriving at its decision allowing the appeal of the 1st – 3rd respondents

The two (2) issues formulated by learned counsel for the 4th respondents, DEMOLA BAKRE, Esq, in the brief of argument filed on 31st October, 2011 are the same as appellants’ issues 1 and 3 earlier reproduced in this judgment. I therefore see no need to reproduce them herein.

The two issues formulated by learned counsel for the 5th and 6th respondents, HASSAN M. LIMAN, SAN in the brief of argument deemed filed on 15th November, 2011 are very simple and straight forward. They are:-

1. Whether the Court of Appeal was right when it held that the 3rd respondent was validly nominated against the 2nd – 43rd appellants regards being had to the provision of the constitution of the Congress for Progressive Change CPD) (the Electoral Act, 2010 (as amended) and the Constitution of the Federal Republic of Nigeria, 1999 (as amended);
2. Whether the court of Appeal was right in holding that the 1st – 43rd respondents failed to prove sufficiently that they are the valid candidates of the 1st respondent in Katsina State general election regards being made to the evidence presented vis-a-vis the Electoral Act, 2011, constitution of Republic of Nigeria, (as amended).

With respect to appeal no SC/334/2011, the issues for determination as identified by learned counsel for the appellant, DEMOLA BAKRE ESQ in the appellant brief dated 21st September, 2011 are as follows:-

1. Whether the Court of Appeal rightly overruled the appellant’s preliminary objection on the competence of Grounds 1, 2 and 3 of the respondents’ notice of appeal.
2. Whether the Court of Appeal rightly held that the party primaries of the 1st respondent conducted on 15th January, 2011 was invalid.
3. Whether the Court of Appeal was right to have held that the 3rd defendant was the properly nominated candidate of the 1st respondent when most of evidence relied on by the 3rd respondent particularly exhibit H were inadmissible.

The facts of the case are simple and include the following.

The appellants in SC/157/2011 and the 3rd respondents are card carrying members of the Congress for Progressive Change (CPC), a registered political party in Nigeria, who participated in one primary election of the party or the other scheduled to elect candidates to represent the political party in the general election held in April, 2011. The political party is the 1st respondent while the 2nd respondent is the National chairman of the party. The 4th respondent and appellant in SC/334/2011 is the Katsina State chairman of the party while the 5th and 6th respondents are some of those responsible for conducting the April, 2011 general election in Nigeria.