The five-man panel of justices in a judgement delivered in a pre-election matter, declared Alhaji Mohammed Sani Musa as winner of the February 23 National Assembly election for the Niger-East Senatorial District of Niger State. Musa had approached the apex court to challenge the decision of the Court of Appeal that upturned the judgment of a Federal High Court which declared him the authentic candidate of the APC for the senatorial election.
Delivering the judgment, the apex court set aside the April 8, 2019 judgment of the appellate court which declared Senator David Umaru, ex-Chairman, Senate Committee on Justice, Human Rights and Legal Matters, the valid candidate of the All Progressives Congress (APC).
In a unanimous judgment on Friday, Justice Tanko Muhammad, who presided over a five-man panel of the Supreme Court, upheld arguments by Chief Wole Olanipekun (SAN), lead counsel to Musa, to the effect that Musa won the primary of the APC for the election and was the actual candidate for the election.
The apex court allowed the appeal filed by Musa, marked: SC/405/2019 and affirmed the February 7, 2019 judgment by Justice Folashade Giwa-Ogunbanjo of the Federal High Court, Abuja, which declared Musa the validly nominated candidate of the APC for the election.
The apex court in the lead judgment, delivered by Justice Kayode Ariwoola,, faulted the decision of the appellate court which had returned Umaru on the grounds that Musa’s suit was filed outside the time provided by the law for pre-election matters.
Justice Ariwoola upheld the argument by Olanipekun that the suit was filed at the trial court, within time, and that the Court of Appeal was in error to have held that the cause of action was the outcome of the primary election.
According to the apex court, the course of action, as argued by the appellant, was the submission of Umaru’s name to INEC instead of Musa, who won the primary.Olanipekun, who led Lateef Fagbemi (SAN) and Ahmed Raji (SAN) for the appellant, had, while arguing the appeal on May 17, 2019, prayed the court to uphold the appeal and restore the judgment of the Federal High Court earlier given in favour of Musa.
The senior lawyer submitted that the Court of Appeal was in error when it held that the appellant was out of time and that the cause of action arose from the day the primary was held.
Olanipekun said: “The appellant could not have complained about the primary election that he won. The cause of action accrued when the1st respondent’s name (Umaru) was sent to INEC as the candidate of the APC.
“The cause of action arose when the APC sent the name of the1st respondent (Umaru) to INEC as its candidate, instead of the appellant, who won the primary.
“The primary election was conducted on October 2, 2018; the 14 days could not have started counting, because the name of the 1st respondents has not been sent to INEC.
“If the 14 days is calculated from their position that the cause of action arose from October 2, 2018 when the primary was held, the cause of action would not have arisen as at October 16, 2018.
“It (the cause of action) only arose on October 18, when the1st respondent’s name was sent to INEC. And we are within time when we filed our suit at the trial court on October 26, 2018.”
Olanipekun noted that the Court of Appeal only set aside the judgment, but failed to upturn any of the findings of the trial court in the judgment of February 7, 2019.
Both Babatunde Ogala, who represented the APC and Taminu Inuwa (SAN), who represented INEC, urged the court to allow the appeal.