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JOSEPH HEMEN BOKO v. BENJAMIN B. NUNGWA & ORS

(2018) LPELR-45890(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of November, 2018

CA/MK/24/2016(2)


Before Their Lordships

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria


Between

JOSEPH HEMEN BOKO - Appellant(s)

AND

1. BENJAMIN B. NUNGWA
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on electoral matters.

FACTS:
This appeal is against the judgment of the Federal High Court, Makurdi.

The appellant, a member of the 2nd respondent, contested the 2nd respondent's primary election held on 2/12/2014, for the nomination of its candidate for the Benue State House of Assembly election scheduled for 2015. He contested with other candidates including the 1st respondent. ???According to the appellant, he scored the highest number of votes at the primary election and was declared the winner of same. He was thereafter issued with 3rd respondent's Forms EC4B(iii) (Form for nomination of Member of State House of Assembly) and CF001 (Affidavit in support of personal particulars of persons seeking election) which he filled and submitted to the 2nd respondent. The 2nd respondent transmitted them to the 3rd respondent. To his surprise, the name of the 1st respondent was substituted for his name.

Consequent upon the foregoing, the appellant filed an originating summons seeking the following reliefs:
"1. A declaration that by the combined operation of Section 87 (4) (c) (i) and (ii) of the Electoral Act 2010 (as amended) Article 20(iii), (v) (c) of the All Progressive Party Constitution paragraphs 14 and 15 (d) of the APC guidelines for party primaries and the APC result sheet for party primaries for House of Assembly, Kwande West State Constituency No. APC/NHQ/BN 0103 of 2/12/2014 the plaintiff is the lawful and validly nominated 2nd defendant's candidate for Kwande West State Constituency at the February 2015 polls.
2. A declaration that the plaintiff having been returned as the winner vide APC/NHQ/BN 0103, filled and return the statutory forms EC4 B (iii) and CF 001 to the 3rd defendant upon 2nd defendant's submission of his name as her candidate for Kwande West State Constituency cannot lawfully and validly have the 1st defendant's name substituted for his (plaintiff's) name as the 2nd defendant's candidate for Kwande West State Constituency without the plaintiff's written and submitted withdrawal from the election.
3. A declaration that the 3rd defendant's publication of the 1st defendant on her website purporting that 1st defendant is the substitute for the plaintiff as the 2nd defendant's candidate for Kwande West State Constituency is unlawful, unwarranted, invalid, null and void not flowing from statutory qualification and contrary to Sections 31, 33 and 35 of the Electoral Act 2010 (as amended).
4. An order that the 3rd defendant further withdraw, delete, erase or remove the name of the 1st defendant from her website and record as the 2nd defendant's candidate for the February 2015 election into the Kwande West State Constituency and to publish the plaintiff's name in all its records and website as the 2nd defendant's candidate for Kwande West State Constituency.
5. An order of Court that the plaintiff is and remains the lawful and valid candidate of the 2nd defendant for Kwande West Constituency at the 2015 polls.
6. An order that any return at the February 2015 polls or whenever same must have been held for election into Kwande West State Constituency in respect of votes cast for the All Progressive Congress (APC) shall be deemed to be a return of votes cast for the plaintiff at the election , AND
7. Any other further order (s) as the Court may deem it fit to make in the interest of justice."

The 1st and 2nd respondents on their part, contended that although appellant was alleged to have had the highest number of votes by the primary election committee of the 2nd respondent, the 1st respondent petitioned against the result on the ground that the appellant did not have the highest number of lawful votes. The 2nd respondent's appeal committee upheld the petition of the 1st respondent and subtracted the unlawful votes, resulting in the 1st respondent scoring the highest number of votes. The National Working Committee of the 2nd respondent accepted and ratified the report and that the name of the 1st respondent was forwarded to 3rd respondent as its candidate.

The trial Court dismissed the case of the appellant. Aggrieved by the decision, the appellant appealed to the Court of Appeal.

ISSUES:
The issues for determination were:
"(1) Whether or not Exhibits DK8, DK9 and DK10 attached to the counter - affidavit of the 1st respondent and Exhibits 1 and 2 to the counter-affidavit of the 2nd respondent were admissible copies of public documents.
(2) In alternative to issue one above, whether or not the proceedings in Exhibit DK8 were competent in the absence of the chairman of the purported appeal panel and in the absence of participation by the appellant or any of the persons adversely affected by the proceedings.
(3) Whether or not the appellant was the duly nominated candidate of the 2nd respondent from the result of primary election held on 02/12/2014 declared at the venue of the primary election, coupled with the forwarding of the appellant's name to the 3rd respondent, and if the answer is in the affirmative, whether the subsequent forwarding of the 1st respondent's name by the 2nd respondent to the 3rd respondent was in violation of Sections 33, 35 and 87 of the Electoral Act, 2010 (as amended).
(4) Whether or not the 1st respondent had breached a fundamental requirement of a valid nomination in view of his failure to comply with Section 31(2) of the Electoral Act, 2010 (as amended) having filed an invalid Form CF001, Exhibit DK12.
(5) Whether or not the decision of the lower Court was supported by the weight of evidence tendered in the case."

DECISION/HELD:
In the final analysis, the appeal was allowed. ???The 1st respondent was ordered to pay to the appellant all the allowances and salaries he received as a member of the House of Assembly, Benue State, from the date of his swearing in to the date of his vacation of the seat.


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