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CASE TITLE: DR. TONY MACFOY & ORS v. MUSA MUHAMMAD CHOLA & 1325 ORS (2022) LPELR-56982(CA)
JUDGMENT DATE: 17TH FEBRUARY 2022
- HARUNA SIMON TSAMMANI, JCA
- BIOBELE ABRAHAM GEORGEWILL, JCA
- BATURE ISAH GAFAI, JCA
PRACTICE AREA: ELECTORAL MATTERS- POLITICAL PARTY
The suit is substantially about the contest on the APC Local Government Congress election result held in Kano in which the Respondents were dissatisfied with. The Respondents, as Claimants in the trial Court, had approached the Court by Originating Summons seeking, inter alia: for a declaration that the 1st-5th Appellants’ decision and or action/ proposal of 17th September, 2021 at the APC Headquarters in Abuja not to recognize the Respondents as the duly, validly, properly, authentically and democratically elected Local Government Area Executive Committee for the 44 Local Government Area Council of Kano State at the Local Government Congress Election conducted by the 1st to 9th Appellants and supervised by the 10th Appellant on the 4th September, 2021 is not valid, proper and in-line with the government laws; an order directing the Appellants to adopt, recognize and rely on the summary result sheet consisting of the Respondents as the only valid, authentic and duly elected Local Government Executive Committee Members and Delegates for the 44 Local Government Areas of Kano State contained in the report submitted at the 1st Appellant National Headquarters in FCT, Abuja.
The Respondents rooted their entitlement to the reliefs upon five questions which they submitted for the trial Court’s determination which are related to the reliefs sought.
At the end of the trial, the learned trial Judge entered judgment in favour of the Respondents. Aggrieved, the Appellants appealed.
The appeal was determined upon consideration of the issues thus:
- Whether the suit was appropriately commenced by way of Originating Summons
- Whether the trial Court had jurisdiction to entertain and determine the 1st – 1,320th Respondents’ Originating Summons as constituted before the trial Court
In the final analysis, the Court of Appeal held that the trial High Court in the FCT lacked territorial jurisdiction to entertain the suit. The appeal was found to be meritorious and was accordingly allowed.
- ELECTORAL MATTERS – POLITICAL PARTY: Whether a Congress of a political party is a pre-election matter and justiciable in law
“My humble view, derived from due consideration of the facts on both the Preliminary Objection and the main suit, is that the suit was substantially about the contest on the APC Local Government Congress election result held in Kano, aspect of the suit against the decision of the APC’s National Officers decision not to recognize a particular result of the election and their decision to substitute one result with another are all secondary questions to the main, real issue in dispute which is the outcome of the election itself. The underlying, real disagreement is about the conduct and the outcome of the election itself, the issue of recognition or substitution of a particular candidate being a dispute arising from the main dispute on the conduct and outcome of the election itself. Without resolving the principal dispute on the conduct of the election and its outcome, it is impossible to resolve the auxiliary disagreement over the alleged unfair recognition or substitution of one candidate or another. Any resolution of the secondary dispute cannot rationally and fairly be achieved, nor can any meaningful benefit inure in the supposed favorite without resolving the principal dispute. Of what use is a car key without a car? The view of the learned trial Judge at page 5761 of the Record (Vol. 7); to wit:
“I hold the firm view that the prayers of the Plaintiffs and the issues raised in the originating summons can be conduct or outcome of the congress held in Kano State” cannot, with respect, be correct because the latter dispute is a direct offshoot of and is inextricably tied to the former principal dispute.
In essence, the suit was not in reality about the alleged recognition or substitution by the APC National Headquarters in Abuja of a particular, favoured candidate in the Local Government Congress election held in Kano State but was majorly all about the conduct and outcome of the election itself.
The act of recognition or substitution of a particular candidate is one that merely seeks to validate or upturn the election of the alleged winner or favorite of the party leadership at Abuja which exercise is deeply immersed in the bigger dispute on the conduct and manner of the election. Those are the underlying facts behind the reliefs sought by the Respondents in this appeal.
I should also add that the Respondents’ attempt to reconstruct the theme of the suit by invoking the provisions of Section 87 (9) of the Electoral Act is one that cannot fit in the facts in the trial firstly because neither of the contestants in the Local Government Congress election is an aspirant for an election under the Act nor is the Local Government Congress election a primary election. The facts and the reliefs sought in the suit have nothing to do with Section 87 (9) of the Electoral Act. As its marginal note indicates, the entirety of the provisions of Section 87 of the Electoral Act deals with nomination of candidates by political parties… See Ufomba vs. INEC (2017) LPELR-SC.75/2016; Adebayo vs. PDP (2013) 17 NWLR (Pt. 1382) 1.
Furthermore, by the provisions of Section 285(1) of the Constitution as altered by the provisions of Section 2 of the Constitution FRN 1999 (Fourth Alteration) Act 2017, the suit is not a pre-election matter because neither are the facts challenging non-compliance with the provisions of the Electoral Act or a decision by INEC in respect of nomination for election under the Act nor is the Local Government Congress election the election that is meant under those provisions. See Section 285 (14) of the Constitution as amended.” Per GAFAI, J.C.A.