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BARRISTER FRANC FAGAH UTOO v. ALL PROGRESSIVES CONGRESS & ORS

(2018) LPELR-44352(SC)

In The Supreme Court of Nigeria

On Friday, the 20th day of April, 2018

SC.93/2017


Before Their Lordships

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria


Between

BARRISTER FRANC FAGAH UTOO - Appellant(s)

AND

1. ALL PROGRESSIVES CONGRESS (APC)
2. DICKSON DOMINIC TARKIGHIR
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.
FACTS:
This appeal is against the judgment of the Court of Appeal, Abuja Division, upholding the decision of the High Court of the Federal Capital Territory.

The case of the appellant was that, Appellant who is a member of the 1st respondent, purchased an expression of interest, a nomination form of the 1st respondent to contest the primary election for the selection of a candidate of 1st respondent for the Federal House of Representatives for the Makurdi/Guma Federal Constituency of Benue State. He was duly screened, participated and won the said primary election. The other aspirant who contested the election with him, C. TERHIDE UTAN, came second. The election was witnessed by the 3rd respondent, who issued a report. The result was declared in public though no certificate of return was issued to appellant by the 1st respondent's Chairman of Primary Election panel which compelled appellant to report to the Appeal Committee of the 1st respondent. The said Committee affirmed the victory of appellant at the primary election. The 2nd respondent did not participate in the election but was later purportedly imposed as the 1st respondent's candidate for the said Federal Constituency election.

On the other hand, the case of the 1st respondent was that about four aspirants, including appellant and 2nd respondent, contested its primary election for nomination of a candidate for the election into the Constituency of the Federal House of Representatives in question, which nomination was won by one BULUAN PETERS who subsequently withdrew his candidacy and was duly substituted by 1st respondent with 2nd respondent who was 2nd at the said primary election.

On the 27th day of January, 2015, appellant instituted an action vide an originating summons against the respondents in which he sought to be declared the winner of the 1st respondent's primary election held on 7/12/2014 for the Makurdi/Guma Federal Constituency of Benue State. The matter was heard and the case of appellant was dismissed resulting in an appeal to the Court of Appeal, which was also dismissed. Appellant appealed to the Supreme Court.

The 2nd respondent filed a notice of preliminary objection as follows:
"1. That the instant Notice of Appeal is hinged on concurrent judgments of the High Court of the Federal Capital Territory, Abuja delivered on 15th December, 2015 and the Court of Appeal delivered on 9th December, 2016.

2. That by Section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered; Section 27(1) (4) of the Supreme Court Act, 2004 and Order 2 Rule 32 of the Supreme Court Rules, leave of Court is essential to appeal against the concurrent judgments, more so as a look at the Grounds of Appeal and their particulars reveal issues of mixed law and facts.

3. That the Appellant failed to secure any leave before filing his Notice of Appeal on 6th January, 2017. 

4. That this Honourable Court lacks the jurisdiction to entertain this appeal."

ISSUES:
The Supreme Court considered the preliminary objection on its merits.
DECISION/HELD:
In the final analysis, the appeal was dismissed.


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