Whether Mandatory Provisions of a Statute Can be Waived 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 6th day of January, 2023

Before Their Lordships

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Emmanuel Akomaye Agim

Justices, Supreme Court

SC/CV/1401/2022

Between

     MUKTARI ADAMU YERIMA APPELLANT

  And

1.    DR MIDALA USMAN BALAMI

2.   PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENTS

3.   INDEPENDENT NATIONAL ELECTORAL

      COMMISSION (INEC)

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The Appellant, the 1st Respondent, and others participated in the 2nd Respondent’s primary election conducted on 22nd May, 2022 for the selection of a candidate for the seat in the House of Representatives for Askira/Uba and Hawul Federal Constituency of Borno State. The election was conducted in Biu Local Government, which was outside the Federal Constituency, on alleged grounds of security threat. The Appellant had 36 votes, while the 1st Respondent had 35 votes at the said election. Other aspirants scored four and one vote, respectively. 

Dissatisfied with the outcome, the 1st Respondent filed a suit before the Federal High Court, Maiduguri, viaan Originating Summons dated 2nd June, 2022, seeking declarations, inter alia, that the election was null and void, on the ground that it was conducted in violation of the Electoral Act and the 2nd Respondent’s Constitution and Guidelines for Primary Elections. He also sought orders for the 2nd Respondent to conduct a fresh primary election, and for the 3rd Respondent to accept whoever emerges as the winner of the fresh election. After hearing the parties and considering the cases presented by them, the trial court, in a judgement delivered on 30th August, 2022, nullified the primary election on the grounds that it was not conducted at the Constituency Headquarters and that the 2nd Respondent did not give the requisite seven days notice to the 3rd Respondent regarding the change of date and venue for the fresh election, as stipulated in Section 84(1)(5) and (b), (c)(i) of the Electoral Act and Regulation 17(c) of the 3rd Respondent’s Regulations for the Conduct of Political Parties Primaries, 2014, as well as Section 50(2)(d) of the 2nd Respondent’s Constitution. The trial court relied on the case of MATO v HEMBER (2018) 5 NWLR (PT. 1612) 258, amongst others, for its position and granted the two reliefs sought by the 1st Respondent for conduct of fresh election within 14 days, and that the 3rd Respondent accepts the winner thereof. 

The Appellant appealed against this decision, on the sole ground that the judgement was against the weight of evidence. The Appellate court, however, dismissed the appeal and affirmed the judgement of the trial court. Dissatisfied, the Appellant appealed to the Supreme Court.

Issue for Determination

The sole issue adopted by the Apex Court in its determination of the appeal is:

Whether the lower court was right to have dismissed the Appellants appeal without considering the affidavit evidence before the trial court which was not properly evaluated, and ascribed probative value to in arriving at the judgement. 

Arguments

On the sole issue, Counsel for the Appellant relied on the Appellant’s and 2nd Respondent’s joint Counter-Affidavit to the 1st Respondent’s Affidavit before the trial court, to the effect that the venue of the primary election was peaceful and sanctioned by the 3rd Respondent and the officials of the 3rd Respondent monitored the election, and the change in venue was due to security concerns. It is asserted that the 3rd Respondent did not challenge or controvert this averment, and thus, remained credible and admitted by the 3rd Respondent. Counsel cited MABOMIJE v OTTO (2016) ALL FWLR (PT. 828) 883. Furthermore, counsel contended that in the given circumstances of insecurity in Borno State, especially the close proximity of Azare Hawul with Sambisa Forest, the evidence that the change in venue was sanctioned by the 3rd Respondent due to security threats was natural, reasonable, and probable, which the lower court overlooked. Counsel submitted that since the change in venue was sanctioned by the 3rd Respondent, the requirement of notice to it did not arise because the change was not at the instance of the 2nd Respondent. He argued further that, in the alternative, the lower court ought to have allowed the appeal since the trial court did not resolve the irreconcilable conflict between the Appellant and 2nd Respondent, on the one hand, and the 1st Respondent’s Counter-Affidavit on the fact that the 3rd Respondent sanctioned the change in venue and also monitored the primary election in question by way of oral evidence.  He relied on the case of CHUKWU v ONWUKA (2016) 5 NWLR (PT. 1506) 529 at 552 and prayed the Apex Court to allow the appeal and set aside the judgement of the lower court.

In response, Counsel for the 1st Respondent asserted that the decision of the trial court was based on proper evaluation of the affidavit evidence before it. Counsel argued that the primary election in question was conducted in breach of the provisions of the Electoral Act 2022, the 3rd Respondent’s Guidelines for Political Party Primaries, and the 2nd Respondent’s Constitution. He maintained that there was no evidence before the trial court that the requisite seven days’ notice was issued to the 3rd Respondent for the change in venue of the election, and even if there was notice, the election was still void, since it was not conducted within the Federal Constituency as prescribed by the provisions of Section 84(a), (5)(1)(c) of the Electoral Act 2022, and Section 50(2)(d) of the 2nd Respondent’s Constitution. Counsel maintained that there was no security threat at the Constituency Headquarters at Azare, and the 3rd Respondent did not monitor the election at Biu, which was conducted in violation of the law. He argued further that there was no conflict in the affidavit evidence of the Appellant and the 2nd Respondent on the one hand, and that of the 1st Respondent on the other hand, in respect of the fact that the venue of the election was changed without due notice to the 3rd Respondent, and, as such, there was no need to call for oral evidence by the trial court in the absence of such conflict. The case of MATO v HEMBER (Supra) amongst others, was relied on. He posited that the Appellant failed to demonstrate any legal or factual errors in the judgement of the lower court justifying intervention, and urged the Supreme Court to dismiss the appeal in its entirety.

Counsel for the 2nd Respondent aligned his arguments with the 1st Respondent, asserting that the primary election conducted at Biu was in contravention of the law and therefore, not valid. He cited JEGEDE v INEC (2021) LPELR – 55481 (SC), amongst others.

Similar to other Respondents, Counsel for the 3rd Respondent submitted that the primary election in question was void since it was not conducted in accordance with the law, and the 3rd Respondent could not have sanctioned an act contrary to the law, as it could not be waived. Additionally, Counsel argued that the role of the 3rd Respondent at primary elections of political parties is to merely monitor, and not to sanction an act that is in sharp conflict with the Electoral Act – UBA v MOGHALU (2022) LPELR-57876 (SC). 

Court’s Judgement and Rationale

Deciding the sole issue, the Supreme Court held that when a trial court dutifully, fully, and properly evaluated the totality of the relevant evidence adduced before it by the parties in a case in line with the prescription of the law, an appellate court lacks the requisite power to embark on the re-evaluation of such evidence on the ground only that it would have reached a different conclusion on all, or even some of the facts in the case. Furthermore, the law also allows and recognises the power of the appellate court, where an issue or evaluation of evidence arises, to where a trial court fails to either properly or at all, evaluate the evidence placed before it in arriving at a decision in a case, re-evaluate such evidence and reach the right or considered decision in the case.

The Supreme Court noted that the suit was initiated by the 1st Respondent by way of Originating Summons, and the suit was entirely predicated and determined on affidavit evidence filed by the parties in support and defence of their case. The court held that when evaluation of evidence involves documentary evidence, of which Affidavit evidence is a species, the law is that the Appellate court is, as in as good a position as the trial court to fully and properly evaluate or re-evaluate same, as the case may be, in order to arrive at a deserving decision in a case – SPDCN LTD v PETELALE (1978) 2 SC 183.

Upon consideration of the affidavit evidence in the record of appeal, the Apex Court found that the findings of the trial court and the lower court were based on the admitted fact that the primary election was conducted in an unmitigated violation and contravention of the express provisions of Section 84 (5) (c) (1) of the Electoral Act 2022, and Section 50(2) (d) of the 2nd Respondent’s Constitution on the conduct of political party primary elections for the purpose of selection/nomination of candidates for elections. 

Regarding the issue of threat alleged as reason for the sudden change in venue by the Appellant, Their Lordships noted that 2nd Respondent’s Constitution stipulated and commands that the primary election shall be held or conducted at the Federal Constituency Headquarters, not just anywhere in the Constituency, and the current subject election was not only conducted or held at a place other than and outside the Headquarters of the Federal Constituency but completely outside the Constituency. The Supreme Court held that the Electoral Act did not provide for holding or conduct of primary election by political parties outside the constituency for which the elective office was to be held, and such a situation or provisions cannot properly be imported into the express, unambiguous, clear and mandatory provisions of Section 84(5)(c)(i) of the Electoral Act, even in the name of doing justice, for whatever reason. In other words, where the provisions of a statute are mandatory or obligatory, a court of law cannot legitimately brush the provisions aside, just because it wants to do justice in the matter – CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD v EKPO (2008) 6 NWLR (PT. 1083) 362

On the whole, the Supreme Court affirmed the decision of the lower court in this appeal, on the grounds that the Appellant failed to effectively demonstrate that the concurrent decisions of the lower courts was unsupported by evidence, or resulted from a misevaluation of the facts – LAWAL v APC (2019) 3 NWLR (PT. 1658) 86. The appeal was thereby dismissed, as lacking in merit.

Appeal Dismissed.

Representation

Al-Bashir Lawal Likko,with Isyaku Saleh, Ibrahim Abdullahi Tanko, and Muhammad Muheeb Ohidaji for the Appellant. 

Gbenga A. Ashaolu, with B.C. Ashaolu, C.O. Richard, and A.A. Ighodalo for the 1st Respondent. 

Abdulaziz Ibrahim, with A.I. Muhammad, M.U. Bunza, and Chief Samson Okpetu for the 2nd Respondent. 

M.A. Attah, with J.W. Nifas and Olawale Olatunde for the 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)