Senator Dahiru Bako Gassol V. Alhaji Abubakar Umar Tutare & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal against the decision of the Court of Appeal, Yola Judicial Division in Appeal No. CA/YL/31/2011 delivered on 13th September 2011, wherein the Court below affirmed the decision of the Federal High Court, Yola Division in Suit No. FHC/YL/CS/17/2011, delivered on 1st April, 2011.

This action was initiated vide an Originating Summons by the 1st Respondent herein at the said Federal High Court, Yola Judicial Division seeking the determination of the following questions:

“1. Is the Plaintiff (i.e the 1st Respondent) who was the Aspirant of the 1st Defendant (2nd Respondent) and the one that scored the highest number of votes cast at the special congress of the 1st Defendant (2nd Respondent held on the 7th and 8th of January, 2011 to select a candidate, to be sponsored by the 1st Defendant (2nd Respondent) to represent the Taraba Central Senatorial District in the election sponsored by the 1st Defendant (i.e. 2nd Respondent) in the elections to the Senate of the National Assembly of the Federal Republic of Nigeria holding in April, 2011 entitled to have his name submitted by the 1st Defendant (i.e. 2nd Respondent) to the 3rd Defendant (i.e 3rd Respondent) as it candidate having regard to the provisions of the ARTICLE 31 and 32 of the Electoral Guidelines for Primary Elections 2010 of the People Democratic Party and Section 87(a) (c) (ii) of the Electoral Act 2010 (as amended)

2. Is the purported submission of the name of the 2nd Defendant (i.e. Appellant) to the 3rd Defendant (3rd Respondent) by the 1st Defendant (i.e. 2nd Respondent) as its candidate to represent Taraba Central Senatorial District in the election to the Senate of the National Assembly of the Federal Republic of Nigeria to be held in April, 2011 not a violation of the Electoral Guidelines for Primary Elections 2010 of the People Democratic Party and Section 87(4) (c) (ii) of the Electoral Act 2010 (as amended) and therefore null and void having regards to the fact that the 2nd Defendant (i.e. Appellant) participated in the said Special Congress Primary Election of the 1st Defendant (i.e. 2nd Respondent held on the 7th and 8th of January, 2011 and failed to score the highest vote cast at the said elections
3. Is the purported Special Congress convention or meeting however styled or called convened by the 1st Defendant (2nd Respondent herein) on the 26th January, 2011 by the publication made on the 22nd January, 2011 for the purpose of the nominating candidates for the elective offices specified in the Electoral Act including elections into membership of the Senate of the National Assembly of the Federal Republic of Nigeria without 21 days prior notice to the 3rd Defendant (3rd Respondent) not a contravention of S. 35(i) of the Electoral Act 2010 (as amended) and S. 228 of the Constitution of the Federal Republic of Nigeria (as amended) and therefore invalid
4. Is the purported Special Congress, Convention, Conference or Meeting however styled or called convened by the 1st Defendant (2nd Respondent) on the 26th January or 29th January 2011 by the publication made on the 22nd January, 2011 for the purpose of nominating the candidates for the elective offices specified in the Electoral Act including elections into membership of the Senate of the National Assembly of the Federal Republic of Nigeria without the monitoring of the 3rd Defendant (3rd Respondent) not a contravention of S. 85 (2) of the Electoral Act 2010 (as amended) and S. 228 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and therefore invalid
5. Can the 1st Defendant (2nd Respondent) validly ignore, disregard, cancel, or annul the result of the said Special Congress Primary Election of the 1st Defendant (2nd Respondent) held on the 7th and 8th January, 2011 wherein the plaintiff scored the highest number of votes cast when the plaintiff:

(i) Is not dead;

(ii) Has not withdrawn his candidature and

(iii) Was not given any hearing on the decision (if any) to ignore cancel or disregard or annul the result of the Primary election aforesaid contrary to Article 31, 32, 33 and 50 of the Electoral Guidelines for Party Elections, 2010 of the People Democratic Party and Section 87 of the Electoral Act 2010 as amended and S. 36 of the Constitution of the Federal Republic of Nigeria, 1999.”

In the main the 1st Respondent sought for the following reliefs:

1. A declaration that having won the primary election held on 7th and 8th January 2011, and was issued Respondent’s Form PD 004/NA/2010, he is entitled to have his name submitted as candidate.
2. An Order restraining the Appellant from parading himself as candidate and the INEC from according him recognition as candidate.

All the parties herein, filed their necessary processes including written addresses in support of their contentions and duly adopted same during the hearing of the substantive matter. After careful review of the various affidavits and written Addresses filed by the parties, the trial Federal High Court entered Judgment in favour of the 1st Respondent declaring as follows:

“1. I declare that the submission of the name of the 2nd Defendant (i e. Appellant) by the 2nd Defendant (i.e. 2nd Respondent) to the 3rd Defendant (i.e. 3rd Respondent) as the candidate of the 1st Defendant (2nd Respondent) to represent Taraba Central Senatorial District in the elections to the senate of the National Assembly of the Federal Republic of Nigeria at the general elections to be held in April, 2011 is a violation of the Electoral Act, 2010 as amended and the rules made by the 1st Defendant (i.e. 2nd Respondent) for the primaries and the Electoral Guidelines for the Primaries Elections 2010 of the People Democratic Party and therefore illegal null and void and of no effect.

2. I hereby declare that the 1st Defendant (i.e. 2nd Respondent) cannot ignore or refuse to recognize the result of the special congress primary election of the 1st Defendant (i.e. 2nd Respondent) held on the 7th and 8th of January, 2011 to select or nominate candidates contained in Form PD004/NA/2010 dated the 7th of January, 2011.
3. I hereby order that the 3rd Defendant (i.e. 3rd Respondent) to recognize the Plaintiff (i.e. 1st Respondent) as the candidate of the 1st Defendant (i.e. 2nd Respondent) for the election into the Senate of the National Assembly of the Federal Republic of Nigeria to represent the Taraba Central Senatorial District in the elections to be held in April, 2011 and to extend and accord the Plaintiff (i.e. 1st Respondent) all rights and privileges of a candidate.
4. The 2nd Defendant (i.e. the Appellant) by the order of this court is hereby restrained from parading himself as the candidate of the 1st Defendant (2nd Respondent) for election to the Senate of the National Assembly of the Federal Republic of Nigeria to represent Taraba Central Senatorial District in the elections to be held in April, 2011.
5. The 1st and 2nd Defendants (2nd and 3rd Respondents) are by the order of this Honourable Court hereby restrained from recognizing, accepting or treating the 2nd Defendant (Appellant) as the candidate of the 1st Defendant (i.e. 2nd Respondent) for the election into the senate of the National Assembly of the Federal Republic of Nigeria to represent Taraba Central District in the election to be held in April, 2011.
6. I make no order as to cost”.

Aggrieved by the decision of the trial court the Appellant filed an appeal before the Court of Appeal, Yola, challenging that decision. In its considered Judgment the Court below held that the trial Federal High Court was right and accordingly affirmed the decision of the trial High Court.

In dismissing the appeal the lower court held inter alia thus:-

“I therefore understand by a community reading of Section 251 (1) of the 1999 Constitution and Section 87 (9) of the Electoral (amendment) Act No. 10 of 2010, that the National Assembly in the exercise of her legislative power derived from Section 4(1) (2) and (3) of the 1999 Constitution, “added to” the jurisdiction limit of the Federal High Court, to enable the latter entertain pre-election matters as it pertained to nomination and election of the candidates at political parties’ primaries in respect of general elections. This understanding is made clearer upon careful perusal of sub-section (r) and (s) of Section 251 (1) of the 1999 constitution, to the effect that where the “validity of any executive or administrative action or decision by the Federal Government or any of its agencies” is in issue it can be challenged in the Federal High Court or any other court seeking declarative injunctive reliefs, against such executive, administrative, action or decision of the federal Government… (See pages 1125 – 1126 of the record of appeal).”

The court further viewed the National Assembly Appeal panel set up by the 2nd Respondent which ordered a re-run primary Election won by the Appellant as “a clog to access to court as far as Section 87(9) of the Electoral Act is concerned”.