A Recap Of The Supreme Court Decision – TheNigerialawyer

Background facts

In preparation for the 2019 general elections INEC prepared a
timetable and schedule of activities among which was a directive to
political parties to conduct their primaries and submit list of
candidates between 18^th of August, 2018 and
7^th of October, 2018. In compliance with the INEC
directives and in line with the guidelines for nomination of
candidates of the party for the 2019 elections, the APC National
Working Committee set up a 7 member election committee headed by
Engineer Abubakar Fari to conduct primaries in Zamfara on
3^rd October, 2018 but violence interrupted the conduct
of the primaries and the primaries was suspended.

The National Working Committee of the party rescheduled the
election to be conducted on the 7^th of October, 2018 and
appointed a different committee, this time around, under the
leadership of Major General Abubakar Mustapha Gana. Due to tension
and shortage of time, the primaries could not hold again.

7^th October 2018 was the deadline for the submission
of the list of party candidates. This being so the state government
directed the  state party executives to conduct primaries at
all levels before 12:00 midnight of 7^th October, 2018.
This was purportedly done within the short period and the list of
those elected were submitted to INEC

Being apprehensive that INEC may not act on the list submitted
to it by the state executives of APC, the party approached the
Zamfara State High Court seeking an order compelling INEC to
approve the list and the prayers were granted consequent upon which
INEC allowed Zamfara APC to participate in the 2019 general
elections. INEC eventually declared APC the winners of all the
contested seats in the state.

However, after the election, aggrieved Marafa faction of APC
continued their case in the Court of Appeal. The joy of those
elected was short-lived as on the 25th of March 2019, the Sokoto
Division of the Court of Appeal set aside the Judgment of the
Zamfara State High Court on the issue of the APC primaries. In its
judgment delivered on that day, the Court of Appeal nullified the
primaries conducted by the Zamfara State Chapter of the party. The
Court of Appeal found and held that at best, there were attempts to
hold primary elections in the State but the party did not and thus
the list of the candidates was not valid, same not having been
submitted to INEC by the national headquarters of the party and
having not been submitted after deadline.

A grieved by the decision of the Court of Appeal, the APC
national headquarters filed an appeal through its counsel, Damian
Dodo (SAN) asking the apex court to quash the judgment of the Court
of Appeal in Sokoto and recognize that of the High Court over the
candidates of the party in Zamfara State.

APC filed a motion to raise new issues in the appeal but the
application was refused.

PRELIMINARY OBJECTION

Chief Mike Ozekhome (SAN) filed a preliminary objection for the
appeal to be struck out. Among the grounds of the objections for
the preliminary objection are that some of the grounds of Appeal
filed by the Appellants are of mixed law and facts requiring leave
of court to be filed and failure to indicate National
Identification number of any of the counsel representing the
appellants.

It was held that election matter is sui generis therefore leave
is not required for filing of Appeal in election cases. On the
issue of National Identification number, the court held

“Section 27 of the National Identity Management Commission
Act of 2007 and its regulations are not part of the rules of this
court and can therefore not apply to the processes filed in this
court. Clearly I find no merit in the Preliminary Objection
accordingly, same is hereby overruled”

ISSUE FOR DETERMINATION

The main and sole issue framed for the determination of the
appeal is:

Whether considering the evidence before the trial court, the
lower court was right when it held that the appellant did not
conduct primaries from which candidates emerged for the 2019
general election

SUBMISSIONS OF COUNSEL AND DECISION OF THE
COURT

While adopting his address, Chief Dodo, SAN,
counsel for APC, prayed the apex court to restore the judgment of
the Zamfara High Court which allowed APC to field candidates in the
general election. Dodo submitted that the judgment of the Court of
Appeal, Sokoto Division, which disqualified APC from nominating
candidate for the election on the grounds that the party did not
conduct lawful primary should be set aside because it erred when it
re-evaluated the evidences before the trial court and relied and
placed probative value on legally inadmissible evidences as the
said evidences relied were made during the pendency and in
anticipation of the sui. The Senior Counsel submitted further that
the trial court never relied on those legally inadmissible
evidences in its decision.

Still in argument, the learned silk submitted that a document
not tendered by the maker even if is a certified true copy should
not be accorded probative value. He submitted further that the
decision of the lower court that Zamfara state APC Chairman
conducted the primaries is unsopportable. According to him, APC
complied with sections 87 and 31 of the Electoral Act and conducted
the primaries by a committee appointed by the National Working
Committee of the party.

However, Chief Mike Ozekhome, SAN, counsel for
Marafa and others urged the appellate court to dismiss the appeal
and affirm the judgment of the Appeal Court. According to him the
court was right in re-evaluating the evidences before the trial
court. Ozekhome submitted that the judgment was a copious
description of how the APC in Zamfara failed to conduct primary
election in accordance with the Electoral Act, party guideline and
the 1999 Constitution. He said the process failed both legal and
integrity tests, adding that the exercise was not conducted to
produce candidates for the last general election as his clients
were fenced out. He asked the apex court not only to strike out the
APC appeal for being incompetent, but to award substantial costs in
favour of Marafa faction of the party.

Mr Tanimu Inuwa, SAN, counsel for
Independent National Electoral Commission (INEC)
aligned himself with the argument canvassed by Ozekhome. He further
explained that the electoral body did not supervise any primary
conducted by the party as mandated by law.

The Supreme Court rejected the argument of Dodo SAN on the
inadmissibility of the documents he made heavy weather of. That
since that was not an issue before the trial and lower courts, it
could not be raised before it without leave. It rejected the
argument that the documents were made during the pendency or in
anticipation of the suit.

The five-member panel in a unanimous decision held that the
Zamfara APC failed to conduct primaries in accordance with the
party’s Constitution, the Electoral Act and the 1999 Constitution
respectively.

In the lead judgment by Justice Paul Adamu
Galinji, the apex court held as follows:

“For the avoidance of doubt, a party that has no candidates
in an election cannot be declared the winner of the election. This
being so the votes credited to the alleged candidates of the
1^st appellant are wasted votes. For this reason it is
hereby ordered that candidates of parties other than the
1^st appellant with the highest votes and the required
spread stand elected into the various offices that were contested
for in Zamfara state in the 2019 General Elections”

Galinji JSC further lamented further and ended with advice as
follows:

“the democratic system this country has adopted was borrowed
from the United States of America and other Democratic Nations of
Europe. Those from whom we borrowed this system  are steadily
forging ahead in all areas of endeavor in order to create a stress
free and economically viable nations. For this country, some
politicians either are ignorant of what party politics is, or out
of mischief, have continuously dragged this nation backward. If
care is not taken, these politicians will drag this nation to the
stone age where all of us would be consumed. I once again, as this
court has consistently preached, I urge this class of politicians
to always play the game according to the law and guidelines which
they themselves have enacted. It is only when this is done that
sanity will take centre stage in the domestic and international
affairs of this great nation.”

The court awarded Ten Million Naira (N10, 000,000.00)
cost against APC and in favour of Marafa and the other
Respondents.

Appearances

D. D. DODO, SAN with him Abdullahi M. Aliyu,
SAN; Nasiru Abdu Dangiri, SAN; Terhemba Gbashima and Samson Eigege
for the Appellants

CHIEF MIKE OZEKHOME, SAN with him Ferdinand
Orbi, SAN; Sylva Ogbemoh, SAN; John Shaka, Esq; and Muhammad Nuhu
for the 1^st to 10^th Respondents

PRINCE L. O. FAGBEMI, SAN with Mahmud Abubakar
Magaji, SAN; Chief H. O. Afolabi and Hakeem Thomas OJO for the
141^st to 178^th Respondents

MR T. M. INUWA, SAN with Alhassan A. Umar and
Abdulaziz Sani, Esq for the 179^th Respondent

MR J. E. OCHIDI with A. A. Jibrin; A. O.
Otitoju, and Abimbola Daniel for the 180^th
Respondent.

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