In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 13th day of January, 2023

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Uwani Musa Abba Aji

Mohammed Lawal Garba

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Justices, Supreme Court

SC/CV/1453/2022

Between

HON. FAROUK ADAMU ALIYU APPELLANT

And

UMAR A. NAMADI
ALL PROGRESSIVES CONGRESS (APC) RESPONDENTS
INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)

(Lead Judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)

Facts

The Appellant participated in the primary election of the 2nd Respondent conducted on 26th May, 2022 to select its Gubernatorial candidate for Jigawa State for the 2023 General Elections. The party adopted the indirect method of selection, as provided for in Section 84(1), (2) and (5) of the Electoral Act, 2022. The 1st Respondent was declared the winner, having scored 1,220 votes while the Appellant came 3rd with 13 votes. Being dissatisfied with the outcome of the primary election, the Appellant instituted an action at the Federal High Court seeking inter alia, a determination of whether the 1st Respondent was validly nominated on the 27th May, 2022 as the Candidate of the 2nd Respondent for the 2023.

The Respondents filed applications challenging the jurisdiction of the court to entertain the suit, principally on the ground that the Appellant’s complaints relate to the emergence of 827 ward delegates at the 2nd Respondent’s Congress held on 17th May, 2022 and their alleged disenfranchisement is a pre-primary matter which is not justiciable. They also challenged the locus standi of the Appellant, to institute the action on behalf of the said delegates who were not parties to the suit. The trial Judge upheld the objections of the Respondents, and the Originating Summons was accordingly struck out. The court nonetheless considered the Appellant’s case on its merits and dismissed same, on the ground that the Appellant failed to prove his claims.

Dissatisfied, the Appellant appealed to the Court of Appeal, which court set aside part of the judgement wherein the trial court held that the Appellant lacked locus standi to institute the action. The appellate court held that the issue of disenfranchisement of the alleged 827 delegates was not the only complaint made by the Appellant, and that in so far as he participated in the primary election and had a complaint alleging non-compliance with the provisions of the Electoral Act and the 2nd Respondent’s electoral regulations and guidelines as regards the time for conducting the Governorship primaries, he had the locus to ventilate his grievance. On its merit, the court dismissed the appeal.

The Appellant filed a further appeal to the Supreme Court. The 1st and 2nd Respondent also filed Cross-appeals.

Issues for Determination

The Supreme Court adopted the two issues for determination raised by the Appellant in determining the appeal to wit:

Whether the Court of Appeal was wrong in holding that the Appellant did not prove the complaint of breach of Article 26 (e) – (i) of the 2nd Respondent’s Guidelines for Nomination of Candidates for 2023 General Election/as it pertains to the issue of non-compliance with the date and time of the conduct of the Gubernatorial primary election, regard being had to the provisions of the Electoral Act 2022.
Whether the lower court was wrong in dismissing the Appellant’s claim that those who voted at the primary election in issue were not eligible delegates duly elected in line with the extant laws and guidelines of the 2nd and 3rd Respondent, regard being had to Section 84(9) of the Electoral Act 2022 and the 2nd Respondent’s Notice for the conduct of the Special Ward Congresses.
Arguments

Arguing the appeal, counsel for the Appellant contended that the 2nd Respondent surreptitiously changed the date of the primary election without notice to the aspirants and INEC, thereby constituting non-compliance with Article 26 (e)-(i) of the 2nd Respondent’s Guidelines for Nomination of Candidates for 2023 election and the Electoral Act 2022. That the Governorship primary election was fixed for 26th May, 2022 as shown in Exhibit FAA9A, Exhibit FAA 35B, while pursuant to the Guidelines (Exhibit FAA6) particularly Article 29 thereof, the primary was to commence at 9am and conclude by 2pm. That by the result of the election as shown in Exhibit FAA9A and Exhibit FAA l0, the election in fact, held on 27th May, 2022. He submitted that the conduct of the primary election on 27th – 28th May, 2022 amounts to a flagrant breach of Article 26(e) and (i) of the 2nd Respondent’s guidelines which require accreditation to be done between 9am to 12 noon and voting to commence immediately accreditation ends and continue till 2pm. He referred to the decision of the Supreme Court in UBA v MOGHALU (2022) LPELR- 57876(SC) to submit that the courts below ought to have upheld his contention that time for conducting the primary election was unlawfully adjusted by the primary election committee without authorisation, and ought to have held that he was entitled to the reliefs sought.

Counsel argued further that the lower court erred in invoking Section 124 of the Evidence Act, and taking judicial notice of the National Conventions of the political parties for the purpose of selecting their Presidential candidates, wherein voting commenced very late and continued through the night till the following morning. He contended that the court raised the issue suo motu without hearing parties and therefore, breached the Appellant’s right to fair hearing. He contended that the 2nd Respondent failed to give at least 21 days’ notice of the proposed conduct of the primary elections to the 3rd Respondent, as stipulated in Section 82(1) of the Electoral Act. Counsel applied Section 15(2)(a) of the Interpretation Act to argue that, in calculating the period, the day on which the event occurs must be excluded and therefore 6th May, 2022 to 26th May, 2022 is a period of 20 days. He submitted that, it is the date of delivery of the document that is relevant for the computation of time.

Responding, counsel for the 1st Respondent relied on UMEAKUNA v UMEAKUNA (2019) 14 NWLR (PT. 1691) 61 at 82-83 to argue that there are circumstances where the word “shall” can be interpreted to convey an obligation, while in certain circumstances it may be interpreted as being permissive and carrying the same meaning as the word “may”. He submitted that a community reading of Article 26 of the 2nd Respondent’s guidelines reveals some discretion granted to conduct the exercise beyond the stipulated time, where there is good and reasonable ground for doing so. He argued that the 1st Respondent was able to demonstrate vide his affidavit evidence that the conduct of the primary commenced on 26th May, 2022 as scheduled in the notice communicated to the 3rd Respondent, but was concluded on 27th May, 2022 due to the fact that the Senate, House of Representatives and State Houses of Assembly Primary Elections were also held on the same day. He also noted that it is not in dispute that the Appellant and his agents were present at the venue of the exercise throughout, and until the results were declared by the returning officer. On the alleged breach of the Appellant’s right to fair hearing, counsel submitted that by Section 124(3) of the Evidence Act, the need to afford a party an opportunity to address the court on a notorious fact, is as the court deems necessary. On computation of time for the notice given to INEC, counsel argued that due to the sui generis nature of election related matters, where time is of the essence, the provision of the Interpretation Act is not applicable. Time as stipulated in the Electoral Act, Practice Directions and the 1999 Constitution, as amended, is from the day of the act and the date on which the event occurs is not excluded.

Court’s Judgement and Rationale

Resolving the first issue and the points contained therein, the Supreme Court noted that the first point to be resolved is whether indeed, the 2nd Respondent changed the date of the primary election from 26th May, 2022 to 27th May, 2022 without giving the requisite notice to the 3rd Respondent. The Appellant’s Exhibit showed that the primary was conducted on the 27th to 28th May, 2022, while both the 2nd Respondent and the 3rd Respondent tendered the same Exhibit to show that the primaries held on 26th to 27th May, 2022 from 9pm to 6am; thus, the onus is on the Appellant to establish the truth of his assertions. Regarding the issue of denial of fair hearing, the Apex Court stated that the contention of the Appellant about the lower court raising the issue of certification of Exhibit FAA 36 suo motu without affording the parties a hearing on the issue, is misconceived. Relying on Sections 104, 105 and 146(1) of the Evidence Act, 2011, Their Lordships held that before a court can place reliance on a certified true copy of a public document, certain requirements must be met, one of which is that necessary payment for the certification must have been made. The court agreed with counsel for the Respondents that, admissibility of a document and the weight to be attached to it are two different things. The function of an appellate court is primarily to determine whether a decision appealed against is right or wrong. and not necessarily whether the reasons for the decision are right or wrong. Given the foregoing, the court held that the Court of Appeal was right in refusing to accord Exhibit FAA 36 and by extension, Exhibit FAA 378 any probative value.

On submissions regarding interpretation of Article 26(e) to (i) of the 2nd Respondent’s guidelines as having an element of discretion and not being strictly mandatory, the Supreme Court held that in the interpretation of statutes words must be given their natural and ordinary meaning unless it would lead to absurdity. A careful examination of sub-paragraphs (e) and (g) of Article 26 reveals some qualification to the period stipulated for accreditation and voting. By sub-paragraph (e), accreditation should commence by 8am and be concluded by 12noon. However, the inclusion of the words “or whenever accreditation ends” in sub-paragraph (g) appears to take cognisance of the fact that accreditation may not end by 12noon, and that anyone already on the queue by that time must be accredited. It is a correct statement of law that generally, when the word “shall” is used in a statute, it is interpreted to be mandatory. However, whether it is used in a mandatory or directory sense depends on the context in which it is used.

On whether the lower courts are bound by the decision in UBA v MOGHALU (Supra), the Supreme Court relied on its decision in UNION OF INDIA v DHANWANTI DEVI (1996) 6 SCC 44, to the effect that in determining if a decision qualifies as precedent, a Judge must chisel out the reason or rationale for a particular decision, and not just pick a sentence here and there. The court is required to ascertain the reason or principle, upon which the court based its decision. In effect, a case is only an authority for what it decides and nothing more. Where the facts of the earlier case differ from the facts of the latter case, the decision in the former cannot serve as precedent in the latter case. It follows that MOGHALU’S CASE is not the same as the instant case.

The Supreme Court further reiterated that, election related matters are sui generis and time sensitive. Judicial pronouncements are to the effect that the Interpretation Act is not applicable, with regard to the computation of time. The court agreed with the holding of the lower courts that election matters are time bound and it cannot be the intention of the legislature that not only the initial notice, but every notice of rescheduling must be given at least 21 days before the date fixed for the particular election. Such an interpretation would lead to absurdity. The court thereby, resolved the first issue against the Appellant.

Resolving the second issue for determination, Their Lordships pointed out that the Appellant in his Originating Summons sought declaratory reliefs from the trial court and therefore, had the burden of proving his entitlement to those reliefs.

On the Cross Appeal, the Supreme Court held that, having resolved the main appeal against the Appellant, the Cross-appeals challenging the Appellant’s locus standi to institute the action at the trial court have become academic and are hereby struck out.

Appeal Dismissed; Cross-Appeal Struck out.

Representation

Onyechi Ikpeazu, SAN & Ors. for the Appellant/Cross-Respondent.

Prince L.O. Fagbemi, SAN & Ors. for the 1st Respondent/Cross-Appellant.

Y.C. Maikyau, SAN & Ors. for the 2nd Respondent/Cross-Appellant.

Dr Hassan M. Liman, SAN & Ors. for the 3rd Respondent/Cross-Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)

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