Whether the First Runner-Up Can Replace the Winner of a Primary Election upon the Withdrawal of the Winner before Submission of His name to INEC

CASE TITLE:   ABDULLAHI v. ARGUNGU & ORS (2023) LPELR-59950(SC)

JUDGMENT DATE:     30TH JANUARY, 2023

JUSTICES:                     CHIMA CENTUS NWEZE, JSC

                                       AMINA ADAMU AUGIE, JSC

                                       MOHAMMED LAWAL GARBA, JSC

                                       HELEN MORONKEJI OGUNWUMIJU, JSC

                                       EMMANUEL AKOMAYE AGIM, JSC

PRACTICE AREA:          ELECTORAL MATTERS

FACTS:

The Kebbi North Senatorial primary election was validly held on 24-5-2022. One Alhaji Ibrahim Bawa Kamba scored the highest number of votes cast and was declared the winner of the primary election. The 1st Respondent was second and one Alhaji Garba Abdullahi was third.

​On 4-6-2022, before the 2nd Respondent forwarded his name to INEC, Alhaji Ibrahim Bawa Kamba, the said winner of the primary election wrote to the 2nd Respondent withdrawing his nomination as a candidate. Following his said withdrawal, the National Working Committee (NWC) of the 2nd Respondent conducted another primary election on 9-6-2022. The Appellant, who had been a member of the All-Progressive Congress (APC) and had participated in the APC Gubernatorial Primary Election of 26th May 2022 and lost, joined the 2nd Respondent in June 2022, obtained a waiver to contest election in PDP by a letter signed by the National Secretary and backdated to 29-4-2022, submitted his expression of interest and nomination form on 8-6-2022 and contested the said 9-6-2022 primary election as the sole candidate.

He scored the highest votes cast and was declared the winner by the 2nd Respondent who forwarded his name to INEC as its candidate for the 2023 general election of Senator for Kebbi North. The 1st Respondent refused to participate in the 9-6-2022 in the assertion of his claim of right to be the candidate of the party as the aspirant with the second highest votes cast in the primary election of 24-5-2022, following the withdrawal of the aspirant with the highest votes cast and winner of that primary election as a candidate of the party.

The 1st Respondent contended that following the withdrawal of the aspirant with the highest votes cast in the primary election of 24-5-2022 as the candidate of the party, he as the candidate with the second highest votes cast, automatically became the candidate of the party, the 2nd Respondent cannot validly hold another primary election and that therefore the 9-6-2022 primary election is invalid. Thus, the 1st Respondent commenced an action; Suit No. FHC/KB/CS/14/2022 at the Federal High Court, sitting in Birnin Kebbi seeking several declaratory reliefs and orders.

The trial judge per Honourable Justice B. G Ashigar in its judgment delivered on the 22nd of September, 2022 entered judgment in favour of the 1st Respondent. Dissatisfied, the Appellant lodged an appeal at the Court of Appeal. The appeal was dismissed and the judgment of the trial Court was affirmed. Still dissatisfied, the Appellant further appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the sole issue thus:

“Whether the lower Court was correct when it affirmed the decision of the trial Court and voided the primary election of the second respondent conducted on June 9, 2022, which produced the appellant as its candidate for Kebbi North Senatorial District in the 2023 General election?”

COUNSEL SUBMISSION

Learned counsel for the Appellant submitted that the Court of Appeal, after making a correct finding that the Electoral Act or Guidelines of the 2nd Respondent does not sanction the submission of the name of runner-up in a primary election, was wrong in holding that there is no provision in any of the above-mentioned documents that forbid the forwarding of the name of the runner up in a primary election, where the winner withdraws before his name is submitted to the third respondent.

He referred to Section 84 (5) (c) (ii) of the Electoral Act, 2022, which provided that no other name other than the name of the winner of a primary election can be submitted to the 3rd Respondent.

The appellant’s counsel posited that the Court of Appeal erroneously ignored the import of Section 33 of the Electoral Act, 2022, and proceeded to rely on the 2nd Respondent’s guidelines, which is inferior to the Electoral Act, in affirming the decision of the trial Court. He further contended that upon the withdrawal of the winner of the primary election held on May 24, 2022, there was no aspirant in the said primary election, including the 1st Respondent, who satisfied the requirement of Section 84 (5)(c) (ii) of the Act, and could be nominated by the 2nd Respondent.

Learned counsel reiterated that the Electoral Act does not recognize the position of a runner-up in a primary election and it is legally impossible for the 1st Respondent’s name to have been submitted to the 3rd Respondent, having not satisfied the provisions of Section 84 (5) (c) (ii) of the Electoral Act.

1st Respondent’s counsel stated that there is no provision either in the Electoral Act, 2022 or in the Electoral guidelines of the 2nd Respondent or its Constitution that stipulates that upon the withdrawal of the winner of a primary election, the name of the runner-up should be submitted to the Independent National Electoral Commission and similarly, there is no provision in the said documents that forbids the forwarding of the name of the runner up in a primary where the winner withdraws before his name is submitted to the 3rd Respondent. He contended that the winner of the primary election having withdrawn his candidacy before his name was submitted to the INEC, leaves the 1st Respondent as the aspirant with the highest number of votes cast. Hence, the name of the 1st Respondent ought to have been forwarded to the 3rd Respondent.

In reply to the 1st Respondent’s counsel’s contention that the 1st Respondent’s name as runner-up ought to have been submitted to the 3rd Respondent, the Appellant’s counsel opined that this submission is a grave misconception of the law.

He pointed out that had the legislature had the intention to mandate political parties to forward the name of a runner-up in a primary election in circumstances such as the instant, it would have clearly stated so.

DECISION/HELD:

In a majority decision, the appeal was allowed. Emmanuel Akomaye Agim, JSC dissented.

RATIO:

ELECTORAL MATTERS- WITHDRAWAL OF CANDIDATE: Whether the first runner-up can replace the winner of a primary election upon the withdrawal of the winner before the submission of his name to INEC

” …Thus, Section 84 (5) (c) (II) of the Electoral Act, 2022, provides as follows:

“In the case of nominations to the position of a senatorial candidate, a member of the House of Representatives and a Member of a State House of Representatives and a Member of a State House of Assembly, the political party shall, where it intends to sponsor candidates-

(i) …

(ii) The aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.”

It follows then, from a literal interpretation of the above provision, only the name of the winner of a primary election, can be submitted to the 3rd Respondent. Thus, upon the withdrawal of the winner of the primary election held on May 24, 2022, there was no candidate to be sponsored by the 2nd Respondent. The 1st Respondent could not, therefore, be nominated by the 2nd Respondent without a valid primary election, as this was the statutory mode of selection. The position of a runner-up is not recognized under the Act, thereby rendering it impossible for the 1st Respondent’s name to have been submitted to the 3rd Respondent.

In compliance with the dictate of this provision, the 2nd Respondent after the winner of its primary election of May 24, 2022, withdrew, and conducted another primary election on June 9, 2022, whereof the appellant emerged as the winner.

I am inclined to agree with the submission of learned senior counsel for the Appellant that the winner of the primary election of May 24, 2022, Alhaji Ibrahim Bawa Kamba, having withdrawn his candidacy on June 4, 2022, before the submission of his name to the 3rd Respondent, activates the provision of Section 33 of the Electoral Act.

The stipulations of Section 33 of the Electoral Act, therefore, is at all material times crucial to this appeal. It provides thus:

“A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 29 of this Act, except in the case of death or withdrawal by the candidate;

Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the Commission for the election concerned.”

The more important reason why this section is crucial is that, besides this section, there is nowhere in the Electoral Act which makes mention of the possibility of the second respondent replacing the withdrawn candidate with the first runner-up or any other candidate, as the Electoral Act compels the submission of the name of the winner of the primary election to the 3rd Respondent. The Act does not provide for a situation where the name of any person other than the winner of the primary election can be submitted to the 3rd Respondent.” Per NWEZE, J.S.C.