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In The Supreme Court of On
Friday, the 8th day of June 2007
Before Their Lordships
SC. 63/2007
Between
And
Reasons for Judgment
of the Court
Delivered by
Niki Tobi,
J.S.C
On 5th of April,
2007, I dismissed this appeal. I indicated that day that I will give my
reasons for the dismissal today. I do so now.
The facts of this case as
presented by the Court of Appeal are in some material difference from those
presented by Dr. Alex Izinyon, SAN, for the 1st appellant in his
brief. The material difference is that Dr. Izinyon has introduced the
element of the 1st respondent not winning the primaries. He said
that the 1st respondent scored 2,061 votes which were less than
the 50% of the total votes of 7,504 cast. Dr. Izinyon would appear not to
have remembered this important aspect when he settled the pleadings at pages
345 to 348 of the Record.
There is yet another aspect.
Dr. Izinyon, in Part 2 of his brief, contended that the name of the 1st
respondent was submitted to the 2nd respondent in error, which
error was later corrected. That, to Learned Senior Advocate, was responsible
for the substitution of the 1st respondent for the 1st
appellant. What qualified the 1st appellant to benefit from the
exercise of substitution, counsel did not include in his narration of facts.
All he narrated was that the 1st respondent's score was 37.5%
which was short of the minimum score of 50%.
Although Dr. Izinyon, in the
course of narrating the facts; said that the name of the 1st
respondent was sent to the 2nd respondent in error, paragraph 4
of the 2nd and 3rd Joint Defendants' Statement of
Defence averred to the contrary:
"In further answer to
paragraphs 11, 13, 14, 16, 17, 18, 19 of the Statement of Claim, the 2nd
and 3rd Defendants deny that the plaintiff's name was submitted
to the 1st Defendant and he is put to the strictest proof
thereto."
The above narration conveys
some contradictions. I will not say a bundle because the aggregate of the
contradictions will not sum to a
bundle. The duty of counsel is to present the case of his client
and they, at times, do so with some sentiments and emotions. This court
cannot hold such human feelings and idiosyncrasies against counsel. That a
counsel should love his client's case to the level of presenting same with
some slant favourable to the client is not a condemnable conduct in so far
as there is sincerity in the presentation and not an ambition to overreach
the case of the adverse party. Such is the fiduciary professional duty of
care counsel owes his client. I have no cause or reason to doubt the
sincerity of Dr. Izinyon in this area of narration of the facts. One may be
sincere in the position he takes but he could be mistaken in his sincerity
at the same time.
I have taken up this for only
one reason and it is to know the exact factual position. I must say that the
1st respondent took time and pains to narrate the facts of the
case from pages 6 to 9 of the brief. I think he did a good job of the facts.
Apart from the tradition of appellate courts taking the narration of facts
by the lower courts more seriously than those of counsel in the event of
conflict, I am inclined to do just that in the light of the situation in
this matter.
I should take the narration of
facts by the two courts below. The trial Judge narration was brief. I can
easily quote the facts here from page 567 of the Record:
"Certain facts are not in
dispute in this suit. These are that the Plaintiff’s name was submitted to
the 1st Defendant vide exhibit F as the 3rd
Defendant's
candidate for the Imo State Gubernatorial
election 2007. This is dated 14th
December, 2006. That on the 18th
January, 2007, vide exhibit K the 3rd Defendant sent to the 1st
Defendant the name of the 2nd
Defendant as its gubernatorial candidate for the
same office.
This submission of a second name is the root cause of this action.”
The above is the version of
the facts by the trial Judge. Let me take the version of the Court of
Appeal. It is a bit more comprehensive. Again, I persuade myself to quote
the facts from page 670 of the Record:
"The facts are that the
appellant emerged winner at the Governorship primaries conducted by the
Peoples Democratic Party for
The learned trial Judge, after
taking the interlocutory matter of jurisdiction, threw out the 1st
respondent's case. I did not see the trial Judge dismissing the suit and so
I cannot say that; although the result at the end is the same thing. I
should quote the two last paragraphs of the judgment at pages 573 and 574 of
the Record:
"By the provision of Section
34 of the Electoral Act 2006, I find that a political party has the power to
change its nominated candidate for another any time before 60 days to
election. In its exercise of the power to change, it needs to inform the
INEC in writing not in any prescribed form of the change. It will also give
INEC cogent reason for the change which INEC should be able to verify.
In the instant case, the 3rd Defendant submitted the name
of the Plaintiff as its Governorship candidate, informed INEC of its change
of candidate and gave INEC a reason for the change. It is left for INEC to
verify the reason or not. But
pursuant to all the above, I will say that the political party is within its
powers to so change its candidate and have so done as far as the parties on
record are concerned."
The Court of Appeal did not
agree with the learned trial Judge. That court overturned the judgment of
the learned trial Judge and allowed the appeal. At page 687 of the Record,
Adekeye, JCA, said:
"Moreover that pronouncement
is not a judicial or judicious exercise of the discretion of the lower court
in the circumstances of the case. I shall not hesitate to conclude that the
learned trial Judge failed to consider all the aspects of section 34(1) and
(2) of the Electoral Act and same has not met the justice of this case. I
hereby allow the appeal. Judgment of the lower court is hereby set aside. No
order as to costs."
The court dismissed the cross
appeal.
Dissatisfied, the appellants
have come to this court. Briefs were filed and exchanged. The 1st
appellant formulated four issues for determination:
"1.
Whether the decisions of this Honourable Court in
Onuoha v. Okafor (1983) 14 NSCC 494
and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 on issues of
nomination and sponsorship of candidate by a political party have been
overtaken by the provisions of Section 34(1) (2) of the Electoral Act, 2006.
2.
Whether the learned Justices of the Court of Appeal were right in
holding that Section 34 of the Electoral Act, 2006 is justiciable.
3.
Whether the learned Justices of the Court of Appeal were right in the
interpretation of Section 34(1) (2) of the Electoral Act, 2006.
4.
Whether the learned Justices of the Court below were right in holding
that Exhibits K, L, and L1 had no probative value having regard to the
admission by consent of the said Exhibits by parties at the stage of the
proceeding."
The 2nd appellant
formulated the following issues for determination:
"(a)
Whether the Court of Appeal was right when it held that the action
before the trial Court being one of sponsorship and nomination of a
candidate by a political party was justiciable, i.e. has section 34(1) (2)
however interpreted taken the issue of nomination and sponsorship of a
candidate outside the Supreme Court decision in:
(a)
P. C. Onuoha v. R. B. K.
Okafor, 1983, SNLR pg 244.
(b)
Dalhatu v. Turaki, 2003 15
NWLR, pt 843 pg 300.
(b)
Whether the Court below was right or not in holding that exhibits, L,
L1 & K had no probative value, when the pieces of evidence above were
admitted by consent of parties.
(c)
Whether the
Court of Appeal as
constituted by a three man panel
instead of 5 Justices, had
jurisdiction to hear and determine the matter before it having
regard to fundamental, constitutional and salient legal issues
raised in the Appeal."
The 1st respondent
formulated the following issues for determination:
"(1)
Whether, having regard to all relevant laws, documentary evidence
before the Court and the complaint in the grounds of appeal, it can be said
that, the Court below was wrong in reaching a conclusion that, there was non
compliance with section 34(2) of the Electoral Act 2006 in the purported
substitution of the name of the Plaintiff with that of the Respondent?
(2)
Whether steps taken in breach of a Court order and in purporting to
substitute the name of the Plaintiff are not null and void?
(3)
Whether the Plaintiffs case is justiciable."
Learned counsel for the 1st
appellant, Dr. Izinyon, SAN, submitted on Issue No. 1 that the Court
of Appeal was wrong to have held that it was not a domestic affair of the 3rd
respondent having scaled a purported nomination and sponsorship and that
section 34(1) and (2) of the
Electoral Act, 2006 has now become the modern
deux ex
machina. He cited
Onuoha v. Okafor (1983) 14 NSCC 494
and Dalhatu v. Turaki (2003) 15 NWLR
(Pt. 843) 310. He dealt with the decisions in the cases at pages 11 to
13 of the brief. He also applied the principles of the two cases at pages 13
to 14 thereof. He argued that section
34(1) can only become applicable and not a domestic affair of the party
when the time allowed has elapsed.
On Issue No. 2, learned
Senior Advocate submitted that the Court of Appeal was wrong in holding that
section 34 is justiciable. He
contended that the section does not confer any right of action on any person
and therefore not justiciable. The only legal right of a candidate is to sue
his political party for breach of its Constitution and nothing else.
On Issue No. 3, learned
Senior Advocate submitted that the Court of Appeal was wrong in the
interpretation of section 34. He contended that the Court of Appeal
introduced many extraneous considerations into the statute. Counsel itemized
them at pages 26 to 27 of the brief. In construing section 34, learned
Senior Advocate invoked the Mischief Rule and submitted that recourse to the
rule can only be applicable where the mischief sought to be removed has
actually been removed. The Legislature rather than remedying the antecedents
left section 34(1) and (2) as a
banana peel that is slippery and slimy, counsel contended. On the rules of
interpretation, learned Senior Advocate cited
Ogbonna v. Attorney-General of Imo
State (1992) 1 NWLR (Pt. 220) 647 at 24, IBWA Ltd, v. Imano Ltd. (1988) 7
SCNJ 326 at 335; Ugu v. Tabi (1997) 7 NWLR (Pt. 531) 268, Ibrahim v.
Mohammed (2003) FWLR (Pt. 156) 902 at 923: NBN Ltd, v. Weide Co. (Nig) Ltd.
(1996) 8 NWLR (Pt. 465) 150 at 165; Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1;
Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (Pt. 901) 44 at 60-61; Udo v.
OHMB (1993) 7 NWLR(Pt. 304) 139. Relying on Exhibits E, F, K. L
and L1, learned counsel submitted that the exhibits satisfied the
requirements of section 34(2) of the Electoral Act. He said that it is not
the duty of the court to audit the reason for the change and whether it has
been verified or not as the party who has made the substitution within the
time provided by law is exercising its lawful right unfettered. He cited
Onuoha v. Okafor (Supra); Dalhatu v.
Turaki (Supra); Agwuna v. Attorney-General of Federation (1995) 5
NWLR (Pt. 396) 441 at 435; Araka v. Egbue (2003) 17 NWLR (Pt. 844) 1 at 2;
Ikpenowor v. Ikojunga (2001) FLWR (Pt. 62) 960 at 1966-1967; LSDPC v.
Adeyemi-Bero (2005) 8 NWLR (Pt. 927) 330 at 357 to 358. Citing Green v.
Green (1987) 2 NSCC 1115 at 1143; INEC v. Musa (2002) 17 NWLR (Pt. 786) 417;
Sodipo v. Lemmikainen (1986) 1 NWLR (Pt. 15) 220 At 238; Udengwu v. Uzuegbu
(2003) 13 NWLR (Pt. 386) 136 at 152; Adeniji v. Adeniji (1972) 7 NSCC 187;
Hauma v. Akpe-Ime (2000) 12 NWLR (Pt. 680) 156; Obomhense v. Erhahon (1993)
7 NWLR (Pt. 303) 22.
Still on
section 34(1) and (2), learned
Senior Advocate submitted that the section is not mandatory, as there is no
procedure for compliance, and sanction for non-compliance. By way of
analogy, learned Senior Advocate called the attention of the court to
section 21(8) of the repealed
Electoral Act, 2002. He cited Craies on Legislation at page 463;
Amokeodo v. IGP (1999) 6 NWLR (Pt.
607) 467 at 480-481 Ogigie v. Obiyan (1997) 10 NWLR (Pt 524) 179 at 190; Pan
Bisbilder Ltd v. First Bank (2000) FWLR (Pt. 2) 177 at
188; Rimi v. INEC (2005) 6 NWLR (Pt. 920} 56 at 80
on the directory nature of section 34.
On Issue No. 4, learned
Senior Advocate submitted that the Court of Appeal was wrong in holding that
Exhibits K,L
and L1 had no
probative value. He specifically submitted that
Exhibit K made on 8th
January, 2007 in a suit instituted on 17th January 2007 only
against INEC was not made during the pendency of the suit nor made in
disobedience of an interim order. He also argued that
Exhibits L and
L1 did not
contravene section 91(3) of the
Evidence Act and therefore admissible. As the documents were admitted by
consent, they are admissible, counsel contended.
He cited Shittu v. Fashawe
(2005) 14 NWLR (Pt. 946) 671 at 690; Olukade v. Alade (1976) 1 All NLR 67;
Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78; Anyebosi v. R. T. Briscoe Nig.
Ltd. (1987) 6 SCNJ 9.
Taking the issue of
ex parte order of interim
injunction, learned Senior Advocate pointed out that at the time the court
granted the interim order on 19th January 2007, the 1st
appellant and the 3rd respondent were not parties as they
only became parties on 6th February, 2007. He relied on
Kotoye v. CBN (1989) 2 SCNJ 31, 7Up
Bottling
Learned Senior Advocate for
the 2nd appellant/3rd respondent, Chief Joe-Kyari
Gadzama on Issue No. 1, referred to
section 34(1) and (2) of the
Electoral Act, 2006 and section 23 of the repealed Electoral Act, 2002
and submitted that the bottom line of the matter is that political parties
have the freedom to substitute any candidate who has been nominated 60 days
before the election while giving reasons for same. He said that the basis
for the inclusion of the phrase "cogent and verifiable" perhaps may have
been to curb the arbitrariness of political parties in the act of
substitution. While so conceding, he contended that the reason for the
insertion of the phrase is not to remove the freedom and rights of political
parties to substitute candidates and vest same in the courts or the
Independent National Electoral Commission, but rather to entrust in the INEC
the duty of ensuring that what the party substituting considers as cogent is
satisfactory.
He pointed out that
section 34(2) of the Act did not
specify any criterion for ascertaining whether reason(s) adduced by
political parties are cogent or not; and that there is no yardstick for the
implementation of the said section because there is no sanction for
non-compliance. He also pointed out that there is no specification for
redress for a candidate who has been substituted and who claims that his
right has been violated. Counsel relied on the mischief rule of
interpretation. He cited Abioye v.
Yakubu (1991) 5 NWLR (Pt. 190) 130; SPDC v. Isaiah (1997) 6 NWLR (Pt. 505}
236 and Omoijahe v. Umoru (1999) 8 NWLR (Pt. 614) 178 at 188.
Learned Senior Advocate
submitted that the intention of the law-makers is to ensure that the
business of substitution of candidates should be left in the hands of
political parties and that it is not the business of the court to hold that
a reason given by a political party is not cogent. To Learned Senior
Advocate, if the courts do so, it will amount to judicial law making. He
cited Attorney-General of
Taking Issue No. 2
learned Senior Advocate submitted that parties are bound by their
admissions. He therefore contended that as Exhibits K, L and L1 were
admitted by consent of the parties, they are bound by them. Learned Senior
Advocate argued that at the time Exhibits L and L1 were made, there was no
evidence before the court that they were made in contemplation of a suit.
Consequently, section 91 of the Evidence Act does not apply, counsel
submitted. He said that the exhibits were not caught by the doctrine of
lis pendis and there was no disobedience of court order.
On Issue No. 3, learned
Senior Advocate argued that five justices instead of three ought to have sat
on the appeal before the Court of Appeal. Although he did not give the
reason why the panel should have been so constituted, he
cited Sken Consult v. Ukey (1981) 1
SC 1 at 17 and Attorney-General of Lagos State v. Hon. Justice Dosunmun
(1989) 2 NWLR (Pt. 111) 552 at 556 and 557. He urged the court to allow
the appeal.
Learned Senior Advocate for
the 1st respondent, Prince L. O. Fagbemi raised a preliminary
objection in respect of grounds 4, 8, 9, 10, 11, 13 and 14 on the ground
that being grounds of fact or mixed law and fact, leave of court was
necessary. As that leave was not sought, the grounds are incompetent and
should be struck out. He cited Erisi
v. Idika (1987) 4 NWLR (Pt. 66) 503.
Taking Issues Nos. 1
and 2 together, learned Senior Advocate examined the tenor of
section 34 of the Act and
submitted that under the canon of interpretation of statute, words of a
statute are to be given their natural or ordinary, meaning; hence where a
word of a statute admits of no ambiguity, literal or natural meaning should
be given and preferred. He cited Adah
v. NYSC (2001) 1 NWLR (Pt. 693) 65 at 79-80.
While conceding that in a
literal construction of section 34 of the Act, It is beyond doubt that a
political party has the right to change any of its candidates at least 60
days to the election, he argued that where the time to substitute has
lapsed, a political party cannot as a matter of course or for the fun of it
substitute or replace a candidate whose name had earlier on been submitted
and who has by virtue acquired a vested right/interest except in case of
death. He examined in admirable detail the provision of section 34 from
pages 17-24 of his brief. He cited
Ezekwesili v. Onwuagbu (1998) 3 NWLR (Pt. 541) 217 at 237; Ojukwu v.
Obasanjo (2004) 12 NWLR {Pt. 886) 169, Adigun v. Attorney-General of Oyo
State (1987) 1 NWLR (Pt. 53) 678 at 702; Lipede v. Sonekan (1995) 1 NWLR
(Pt. 374) 668 at 691; Co-operative and Commerce Bank Nigeria Ltd, v.
Attorney-General of Anambra State 1992) 8 NWLR (Pt. 261) at 556; Kamba v.
Bawa (2005) 4 NWLR (Pt .914) 43-at 74-75; UNTHBM v. Nnoye (1994) 8 NWLR (Pt.
363) 406; Nigerian Ports Plc v. Osinuga (2001) 7 NWLR (Pt. 712) 412 at 430
and Ejileme v. Okpara (1998) 9 NWLR {Pt. 567) 587 at 619.
He dealt with the importance
of history of legislation, particularly section 34(2) of the Act from pages
23 to 33 of the brief. He
cited in support of his arguments,
Halsbury's Law of England, 4th edition, Re Issue Vol. 44(1);
Maxwell on the Interpretation of Statutes, page 19; Ugu v. Tabi (1997) 7
NWLR (Pt. 518) 368 at 380; CCB (Nig) Plc v. Attorney-General of Anambra
State (1992) 8 NWLR. (Pt. 261) 528 at 556; Pan Bisbilder (Nig) Ltd, v. FBN
Ltd. {2000} 1 NWLR (Pt. 642) 684 at 693: Ifezu v. Mbadugha (1.984) NSCC 314
and Adefulu v. Okuleja (1996) 9 NWLR (Pt. 475) 668 at 693.
Examining the effect of
Exhibits F, K, L, and
M, learned Senior
Advocate submitted that the Court of Appeal was correct in not giving
probative value to them for two reasons, viz: (1) They were made in
disobedience of a court order and (2) they were made in anticipation of the
litigation thus violating section 91 (3) of the Evidence Act. He dealt with
Exhibit L in greater
detail and made this submission at page 38 of the brief:
"Since all concerned know the
consequences of writing or taking action to prejudice a pending case, the
consequences of writing Exhibit L and L1 should be visited on the 2nd
and 3rd Defendants. The consequences of Exhibits F, K, L and M
can be upheld and that Exhibit F remains the only document by which Exhibit
K will be judged. Since Exhibit K has been unhelpful, Exhibit L cannot be
put to any beneficial use in favour of the 2nd and 3rd
Defendants in view of the foregoing submission. Thus Exhibit L, having been
made to overreach the case before the court should be declared void."
He cited
Kankia v. Maigemu (2003) 6 NWLR (Pt.
817) 469 at 517 to 518.
On whether the name of the 1st
respondent has been lawfully removed or substituted, learned Senior
Advocate submitted that the name was wrongly substituted in violation of
section 34(2) of the Electoral Act;
a provision which is mandatory and must be complied with. He contended that
with the acceptance and publication of the name of the 1st
respondent as the sponsored candidate of the 3rd respondent, he
became vested with a right under the Electoral Act and that right or
interest can only be taken away in accordance with the provision of section
34(2) of the Act, as it relates to change of name of a candidate. He cited
Ndayako v. Dantoro (2004) 13 NWLR
(Pt. 889) 187 at 216 and Afolabi
v. Governor of
Learned Senior Advocate urged
the court to ignore Exhibits K, L
and L1
because they did not meet the requirements of section 34(2). He submitted in
particular that as Exhibit K did not say that it was changing,
substituting or replacing the earlier candidates submitted vide Exhibit
F, it is a worthless document. On Exhibit L, learned Senior
Advocate submitted that although it said that the 1st
respondent's name was submitted in error, the nature of the error was not
stated. He referred to the finding of the learned trial Judge to the effect
that Exhibit K was silent as "to what it is" and argued that the
finding, not being challenged, is deemed admitted. He cited
Okonkwo v. INEC (2004) 1 NWLR (Pt.
854). 242 at 282; Oshodi v. Evifunmi (2000) 13 NWLR (Pt.
684) 298. He also urged
the court not to give probative value to Exhibits L. and L1 because they
were made during the pendency of the proceedings in which the 3'd
respondent was involved.
On the disobedience of the
interim order, learned Senior Advocate submitted that as
Exhibits E1 and L7 were
made and forwarded to INEC during the pendency of the life span of the
order, at least before 15th February 2007, any steps taken before
effluxion of time as to the life span of the court order remains
incompetent. Counsel urged the court to hold that Exhibits L and
L1 have no probative value, having been made during the subsistence of a
court order.
On Issue No.3, learned Senior
Advocate submitted, that the case is justiciable as the court has
jurisdiction to hear it. He argued that as the decision of
Onuoha v. Okafor (supra) was
predicated on the repealed Electoral Act, the decision is no longer apposite
in the present dispensation and it will be wrong to continue to rely on such
a case. Judicial authorities must only be cited if the facts are similar,
learned Senior Advocate contended. But counsel in the early parts of his
brief invited us to overrule Onuoha.
I do not know how he can reconcile the two submissions, particularly in the
light of his reference to Adegoke
Motors Nig. Ltd, v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 265 and
266.
Learned Senior Advocate
submitted that the 3rd respondent is bound by its Constitution
and guidelines in particular Exhibits A and B. He cited
sections 221 and 222 of the Constitution which provide for political parties
to make their Constitutions and Regulations. Citing paragraph 5 of the
Amended Statement of Claim and paragraph 1(i), (ii) and (iii) of the
appellant's reply to the Statement of Defence of the 2nd
defendant, he submitted that none of the parties denied the fact that
primaries which saw the emergence of 1st respondent were
conducted under and in compliance with the Constitution and Electoral
Guidelines of the party, Exhibits
A and B. While conceding that the 3rd respondent
can substitute or change a candidate it is sponsoring by virtue of Article
51 of the Electoral Guidelines, such a substitution or change should now
comply with section 34(2) of the Electoral Act.
On the submission of learned
counsel for the 1st appellant that the 1sl respondent
did not win 50% of the votes at the primaries as provided for under the 3rd
respondent's Constitution and Guidelines, learned Senior Advocate urged the
court to discountenance that submission on the ground that it is
incompetent. He argued that the issue of wining primaries or not is an issue
coming up for the first time in this court and 1st appellant
ought to have obtained the leave of this court to raise the fresh issue. He
cited Adjo v. State (1986) 2 NWLR
(-Ptr24) 581: Orogan v. State (1988) 5 NWLR (Pt 44) 688. He urged the
court to dismiss the appeal.
Learned Senior Advocate for
the 1st respondent in his brief to the 2nd appellant/3rd
respondent (Peoples Democratic Party) adopted the brief to of in respect of
the 1st appellant, Engineer Charles Ugwu. He submitted in
addition that the argument of the 2nd appellant/3rd
respondent on the composition of the panel of justices does not arise as
no interpretation of any part of the Constitution
of the Federal Republic of Nigeria, 1999 was in issue in the Court of Appeal
and none was decided. I do not intend to take his arguments on this issue
further as learned Senior Advocate for the 2nd appellant/3rd
respondent rightly withdrew the issue.
Dr. Izinyon, SAN, for 1st
appellant, in his reply brief submitted that the hullabaloo in the case by
the 1st respondent to overrule the decision in
Onuoha v. Okafor (supra) is
grossly misconceived in law and a non sequitur.
He gave ten reasons in the reply brief why the decision should not be
overruled.
Although it is elementary law
that a reply brief only replies to law, the 1st appellant in
paragraph 2.0, 2.1 and 2:2 replied to facts, contending that there is
nowhere in all the facts where 1st respondent claimed he won the
primaries by scoring 50% of the total votes cast in
Exhibit E. He cited
Exhibit B.
On whether the claim of the 1st
respondent was essentially declaratory, learned Senior Advocate submitted
that the claim was not only declaratory but consists of a positive relief of
injunction in paragraph 8. He contended that the
argument of learned Senior Advocate
for the 1st respondent that where a statute provided for
a particular mode of doing
a thing no other method must be adopted is not
applicable to the case on appeal. If the lawmaker intended a sanction to be
imposed for non-compliance it would so say expressly. On the purpose and
essence of section 34 of the Act, learned Senior Advocate referred to Issues
Nos. 2 and 3 arising from grounds 1,2,3,5,6,7,8,10
and 12.
Learned Senior Advocate
submitted that the 1st respondent did not properly invoke the
mischief rule. He gave four reasons for his submission at page 5 of the
reply brief. He examined the cases of
Pan Bisbilder Ltd v.
First Bank (2000) FWLR {Pt. 2) 177 at 188 and Ifezue v.
Mbadugha (1984) NSCC 14.
He urged the court once again to allow the appeal.
Let me quickly deal with the
preliminary issues raised by Prince Fagbemi and Chief Gadzama, learned
Senior Advocates. They are two. The one raised by Prince Fagbemi was on
grounds of appeal involving mixed law and facts which needed leave of court
and that leave was not obtained. The second one by Chief Gadzama was that
the panel of the Court of Appeal was not properly constituted. Both counsel
applied to withdraw their objections. That is good judgment for which
commend them. The objections are therefore struck out.
The fulcrum or crux of this
appeal is the interpretation of section 34 of the Electoral Act 2006,
specifically section 34(2). Let me read the whole section for completeness.
"(1)
A political party intending to change any
of its candidates for any election shall inform the Commission of such
change in writing not later than 60 days to the election.
(2)
Any application made pursuant to subsection (1) of this Section shall
give cogent and verifiable reasons
(3)
Except in the case
of death, there shall be no
substitution or replacement of any candidate whatsoever after
the date referred to in subsection (l) of this Section."
The underlying principle in
the interpretation of a statute is that the meaning of the statute or
legislation must be collected from the plain and unambiguous expressions or
words used therein rather than from any notions which may be entertained as
to what is just and expedient. See
Ahmed v. Kassim (1958) 3 FSC 51;
Lawal v. GB Ollivant (1972) 3 SC 124. The literal construction must be
followed unless this would lead to absurdity and inconsistency with the
provisions of the statute as a whole. See
Onasile v. Idowu (1961) 1 All NLR
313. This is because it is the duty of the Judge, to construe the words
of a statute and give those words their appropriate meaning and effect. See
Adejumo
v.
The Military Governor of Lagos State (1972) 3 SC 124.
It is certainly not the duty of a Judge to interpret a statute to avoid its
consequences. See Anya v. Henshaw
(1972) 5 SC 87. The consequences of a statute are those of the
Legislature; not the Judge. A Judge who regiments himself to the
consequences of a statute is moving outside his domain of statutory
interpretation. He has by that conduct engaged himself in morality which may
be against the tenor of the statute and therefore not within his judicial
power.
It is only when the literal
meaning result in ambiguity or injustice that a Judge may seek internal aid
within the body of the statute itself or external aid from statutes in
pari materia in order to resolve the ambiguity or avoid doing injustice.
See Mobil v. FBIR (1977) 3 SC 53.
The above is an exception to the rule rather than the rule. In the
construction of a statute, the primary concern of a Judge is the attainment
of the intention of the Legislature. If the language used by the Legislature
is clear and explicit, the Judge must give effect to it because in such a
situation, the words of the statute speak the intention of the
Legislature.See Ojokolobo v. Alamu
(1987) 3 NWLR (Pt 61) 377.
The words in a statute are
primarily used in their ordinary grammatical meaning or common or popular
sense and generally as used as they would have been ordinarily understood.
See Garba
v. FCSC (1988) 1 NWLR (Pt
71)449. In construing a statute, the Judge must pay particular attention
to the grammar or syntax in or underlying the construction. This does not
make the Judge or turn him as a grammarian. By his professional training and
his regular application of that training to the construction of statutes, he
becomes an expert. His expertise coupled with the fact that as a Judge,
words are his tools, his professional ability to construe the grammar or
syntax in a statute cannot be in doubt.
I now take the Mischief Rule.
This is important because the Court of Appeal examined part of the rule at
page 680 of the Record:
"Interpretation of statute is
an indispensable aspect of adjudication. It is not unusual to be guided or
persuaded by historical facts culminating into promulgation of certain laws
in their interpretation for the comprehension of their subject matter. This
has followed the footsteps of the legislators who in their role as law
makers have been guided by history of past events in promulgating laws to
correct the mischief meant to be cured by such legislation."
'Reacting to the invocation of
the'place of history in the Mischief Rule, Dr. Izinyon, SAN, said on page 28
of his brief:
"It is submitted that recourse
to the historical Rule can only be applicable where the mischief sought to
be removed has actually been removed. The Legislature rather than remedying
the antecedents left section 34(1) (2) of the Act as a banana peel that is
slippery and slimy."
While I do not want to go into
the statement whether section 34(1) (2) was left as a banana peel that is
slippery and slimy, I should take for ease of understanding the Mischief
Rule, the history of the rule and its content. The Rule was formulated by
the Barons of the Exchequer in 1584 in Heydon's case, 3
"...
that for the sure and true interpretation of all statutes
in general (be
they penal
or beneficial
restrictive or enlarging of the common law) four things are to be discerned
and considered: (1st) What was the common law before the making
of the Act. (2nd)
What was the mischief and defect for which
the common law did not provide. (3rd)
What remedy the Parliament had resolved and
appointed to cure the disease of the commonwealth.
(4th) The true reason of the remedy, and then the office
of all the Judges is always to make such construction as shall suppress the
mischief and
advance the
remedy and
to suppress
subtle inventions
and evasions
for continuance of
the mischief
and
prop
private commodo, and to add force and life to the cure and
remedy, according to the true intention of the makers of the Act,
pro bono publico."
It is clear from the above
that to properly ascertain the mischief aimed at by a statute it is
sometimes helpful to look into the history of the statute. Therefore in
construing a statutory provision which is ambiguous, preference should be
given to the view which would not lead to public mischief. See
Ifezuo vs Madugha (1984) 1 SCNLR 427.
One of the most useful guidelines to interpretation is the mischief rule
which considers the state of the law before the enactment, the defect which
the statute sets out to remedy and/or prevent, the remedy adopted by the
Legislature to cure the mischief and the true reason of or behind the
remedy. The duty of a Judge therefore is to adopt such interpretation that
will enable the suppression of the mischief and to promote the remedy within
the intent or intention of the statute. See
Savanah Bank vs Ajilo (1989) 1 NWLR
(Pt. 97) 305. To arrive at a reasonable construction of a
statute, the Judge is entitled, following the Rule in Heydon's case, to
consider how the law stood when the statute was passed, what the mischief
was for which the old law did not provide, and the remedy which the new law
has provided to cure that mischief. See
With the above background of
the law, I shall take the submissions of counsel and construe section 34(2)
of the Electoral Act, 2006. The submissions are three: non-justiciability of
the subsection, construction of the word "shall" in the subsection as "may"
and whether section 34 of the Act is a replay of section 23 of the Electoral
Act of 2002. I will take the above
seriatim.
Dr. Izinyon submitted that by
the phraseology of section 34 of the Act, it does not confer any right of
action on any person. He contended that in order to hold a piece of section
of a statute justiciable, this court has had cause to examine the statement
and the reliefs. By the claim and reliefs, the issues are not justiciable,
learned Senior Advocate submitted. Chief Gadzama submitted that the
intention of the law makers is to ensure that the business of substitution
of candidates should be left in the hands of political parties and that the
courts have no business to hold that a reason given by a political party is
not cogent. Although Chief Gadzama did not use the expression "not
justiciable" as Dr, Izinyon, he says the same thing.
Are they right?
I think not. Draftsmen
are not miserly with their language of ousting the jurisdiction of the
courts when they so wish or intend.
They state their mind or intention clearly in order to avoid any
speculation or conjecture about their intention. Let me give some examples
from the 1999 Constitution. Section 6(6)(C) and
(d), 143(10), 188(10) and 308
clearly provide for ouster clauses.
Because ouster clauses are antithetical to the rule of law, courts of
law can only surrender to them if they are provided in a statute. And
because of their posture of enmity, draftsmen clearly provide for them in a
statute and therefore never subject to subtle or clever interpretation. If
the National Assembly intended that jurisdiction of the courts should be
ousted, in respect of section 34(2) of the Electoral Act, 2006 there should
have been a clear ouster clause. In view of the fact that the subsection
does not contain ouster clause this court cannot read into the provision
such a clause. That will be interfering with the function of the
Legislature.
While I agree, entirely with
learned Senior Advocates that the duty is on the Independent National
Electoral Commission to interpret what is cogent and
verifiable, I do hot agree with them that the tennis ball ends at the
court of the INEC. In my humble view, the tennis ball moves from the court
of INEC to the court of law at the instance of an aggrieved party, who is
not satisfied with the interpretation of what is cogent and verifiable.
And that takes me to the two
expressions. What do they mean? First, the word cogent.
Counsel for the 1st respondent lifted the definition of cogent
from Chambers Dictionary, New Edition (1990) as "powerful; convincing". He
also lifted the definition of the word from Oxford Advanced Learners
Dictionary of Current English 6th edition, as "strongly and
clearly expressed in a way that influences what people believe".
I agree with the above
definitions. Cogent, usually used in the context of reasons or arguments,
tends, to persuade or to produce belief. It must convince the person it is
addressed. The reason or argument must be satisfactory to the person it is
addressed. Where INEC is convinced or satisfied with the cogency of the
reason, section 6 of the Constitution vests in the Judiciary the power to
interpret the subsection at the instance of a party aggrieved with the
interpretation of INEC. That, in my view, is the basis or essence of the
introductory stuff in paragraphs 1.1, 1.2; 1.3 and 1.4 of the 1st
respondent's brief. The role of the Judiciary, very aptly stated in the
brief, cannot be taken away in the absence of an ouster clause.
The second word is
"verifiable". Again, counsel for the 1st respondent lifted the
meaning of the word from The Oxford Advanced Learner's Dictionary as "To
check that something is true or accurate... To show or confirm". I accept
the definition. The verb "verify", a variant of the adjective "verifiable"
means to make certain that a fact or statement or a state of things as
stated is correct or true. It also conveys an element of "confirm". This
therefore means that the noun "verification" has good company with the noun
confirmation. If an aggrieved party is not satisfied with the
exercise of
verification by the 2nd
respondent, he can seek redress in a court of law.
It is the argument of Dr.
Izinyon that section 34{2) is directory and not mandatory. He specifically
submitted that the use of the word "shall" in the absence of any sanction
cannot be said to be mandatory, especially as to how it should be enforced.
Learned Senior Advocate did not call the attention of the court to any
authority to the effect that in the absence of a specific sanction in a
section, the word "shall" must be interpreted as
directory. I know of no authority too. And when I say this, I do not take
what counsel quoted in paragraph 6.30 as authority for his proposal because
it is not apt.
In the interpretation of
statute, the word "shall" has various meanings. It may be used as implying
futurity or implying a mandate or as contended by Dr. Izinyon, direction or
giving permission. The word "shall" when used in a statutory provision
imports that a thing must be done and that when the negative phrase "shall
not" is used, it implies that something must not be done. It is a form of a
command or mandate. See
Nigeria LNG Limited v. African
Development Insurance Co. Ltd. (1995) 8 NWLR (Pt. 416) 677.
Generally, when the word "shall" is used in a statute, it is not permissive.
It is mandatory. See Col. Kaliel Rtd.
V. Alhahji Aliero (1999) 4 NWLR (Pt. 597) 139. The word "shall" in its
ordinary meaning is a word of command which is normally given a compulsory
meaning because it is intended to denote obligation. As contended by Dr.
Izinyon, it is sometimes intended to be directory only and in that case it
is equivalent to "may" and will be construed as being merely permissive. See
Amokeodo v. Inspector-General of
Police (1999) 6 NWLR (Pt. 607) 467.
It is my firm view that the
word "shall" in section 34(2) is clearly mandatory and peremptory and not
directory or permissive. In other words, by the subsection the 3rd
respondent, must in its application to the 2nd respondent, give
cogent and verifiable reasons for the change of candidate. Where the 3rd
respondent fails to give any reasons or gives reasons which are not
cogent and verifiable, an aggrieved party has the legal right to seek
redress in a competent court of law by virtue or in virtue of section 6 of
the Constitution. This is what the 1st respondent did and I
cannot fault him for doing so.
Learned Senior Advocate for
the 2nd appeltant/3rd respondent called this "judicial
law making". According to counsel, "this is so because section 34 of the Act
did not expressly provide for the duty of the court to adjudicate on whether
a reason advanced by a political party is cogent or not. He cited
I should now resort to the
mischief rule in the construction of section 34(2) of the Electoral Act,
2006. Following the mischief rule takes me back to history of about four
years. The bus stop of the four years is the repealed Electoral Act of 2002.
I think counsel referred to section 23 of the repealed Act. The section
reads:-
"Any political party which
wishes to change any of its candidates for any election under this Act may
signify its intention in writing to the Commission not later than 30 days to
the date of Election."
Learned Senior Advocate for
the 2nd appellant/ 3rd respondent submitted at
paragraph 4.02 of his brief that "section 23 of the 2002 Electoral Act is in
pari materia with section
34 of the 2006 Act and that the only difference is that the phrase cogent
and verifiable reason" was not contained in the 2002 Act". With respect, I
do not agree with him.
There are other differences apart from the phrase "cogent and verifiable
reason". The first major
difference is that section 23 is
one single
section without subsections.
Section 34
is one
section consisting of three
subsections, Second, while section 23 provided for thirty days for
political party to change a candidate, section 34(1) provides for sixty
days. The third difference is that section 23 did not provide for the
situation or position in section 34(2). Fourth, so too the situation or
position in section 34(3) which provides for substitution or replacement in
the event of death outside the sixty days required in section 34(1). Learned
Senior Advocate is with me in the third difference. As a matter of fact, he
brought it out clearly in his brief.
I know as a matter of fact
that both the 2002 and the 2006 Acts were enacted by the National Assembly;
one by the National Assembly that existed between 1999 and 2002 and the
other by the current National Assembly. Why did the current National
Assembly change the permissive "may" in the 2002 Act to the mandatory
"shall" in the 2006 Act if the legislative body did not intend any
difference? This question is relevant in the light of the submission of Dr.
Izinyon. I think this is the application of the mischief rule.
Chief Gadzama, SAN, submitted
that whether such non-inclusion was intended or not, the bottom line is that
political parties have the freedom to substitute any candidate who has been
nominated not later than sixty days to the election while giving reasons for
same. I entirely agree with him, subject however to the rider that the
reasons given must be cogent and verifiable by a court of law at the
instance of an aggrieved party. I think I have flogged this point over and
over.
Chief Gadzama, SAN, correctly,
in my view, opined that the basis for the inclusion of the phrase "cogent
and verifiable" perhaps may have been to curb the arbitrariness of political
parties in the act of substitution.
Prince Fagbemi, put it more strongly when he said in paragraph 1.6 of
his brief that "by introducing section 34 of the
Electoral Act 2006, the Legislature intends to curtail the
rascality of the past which led to the decisions of superior courts in
cases". Counsel cited six cases including
Onuoha v. Okafor (supra)
and
Dalhatu v. Turaki
(supra). If the
intention of section 34(2), to use the correct language of Chief Gadzama, is
"to curb the arbitrariness of political parties in the act of substitution",
could the intention of the National Assembly in providing for section 34(2)
merely to enable the "political parties have the freedom to substitute any
candidate who has been nominated not later than 60 days before the election"
and for 2nd respondent
to be the alpha and omega of deciding on the subsection
without the court playing its constitutional role of an arbiter in the event
grievance? That is in essence the argument of Chief Gadzama. That is also
materially the argument of
Dr. Izinyon, although he is not as dogmatic as Chief Gadzama
in respect of the freedom of the 3rd respondent to substitute a
candidate.
Considering the fact that the
word freedom in the
context means, not being under control of any person or thing, and power or
right to do, say or do whatever one wants to, there is every justification
to disagree with Chief Gadzama. By the expression, a political party and
indeed the 3rd respondent has the
freedom of the air to change a candidate and in so far as it does so within
the 60 days limit, the party cannot be questioned. But is that the freedom
learned Senior Advocate has in mind when he added the words "giving reasons
for same” in paragraph 4.03. I do not think so. Of course, it can so mean if
Chief Gadzama is of the view that the reasons the political party will give
must be accepted by the 2nd respondent come rain, come sunshine.
In such a situation, the reasons could be merely cosmetic.
Is that the intention of
section 34(2)? No.
The subsection is much more than that.
It is not only an affair between a political party and INEC, if a
person is aggrieved by the decision of INEC.
And that is where the courts come in and that was why this matter was
commenced by the 1st respondent in a court of law.
Were any reasons given by the
3rd respondent for substituting the name of the 1st
respondent for the 1st appellant as required by section 34(2) of
the Act?. I
do not think both Dr. Izinyon and
Chief Gadzama gave a correct answer to this question.
But Prince Fagbemi did.
Dr. Izinyon submitted that the name of the
1st respondent was
submitted in error.
Chief Gadzama, if I remember rightly, in his oral address, gave a few
reasons for the substitution.
I think he tried the court on the generic reason of "error" too, like
Dr. Izinyon. These are facts which ought to have been set out in the case of
the defendants in the trial court.
As facts they belong to the defendants and counsel qua
advocates cannot supply them even at the trial court not to talk of the
Supreme Court. . The reasons given by Chief Gadzama in his oral submission
should have made so much difference, if not all the difference in this
appeal, if they emanated from the head and mouth of the defendants.
Assuming that the 3rd
respondent committed an error in submitting the name of the 1st
respondent, what was the error? An error is a mistake. It is the state or
quality of being wrong or mistaken. Although error is a more formal word in
usage than mistake, they are synonyms. And so, I ask what was the error or
mistake of the 3rd respondent? And here, I go to the submission
of Dr. Izinyon that the 1st respondent scored 2,061 votes which
is 37.5%. In his words: "Little wonder the 3rd respondent
reiterated its stand that his name was substituted in error." He submitted
as follows in paragraph 2.3 of page 5 of his brief:
"He only scored the highest
votes of 2,061 which was short of 50% of the
total votes of 7,504 required to win the primaries, as provided for in
paragraph 21(n) of Exhibit B at page 243 of the record."
And so the error for the
substitution, according to Dr. Izinyon, was the failure of the 1st
respondent to score 50%? Did the 1st appellant score 50% to
deserve the substitution? Dr. Izinyon did not extend his argument to the 1st
appellant. I expected him to do so. It is possible he forgot to do so.
In order to fully appreciate the score at the primaries, I shall reproduce
verbatim ad literatim the
scores of the candidates in
Exhibit E.
Peoples Democratic Party
Nominated Gubernatorial Aspirants
It is clear from Exhibit E
that the 1st appellant in serial No.16 who scored 36 votes
along with E. Udeogu was substituted for 1st respondent who
scored highest and total votes of 2,061. As it is, the "error" punctured
serial Nos. 2, 3, 6, 7,. 8, 9, 13, 15, 20,
21 and 22 and inflated serial No. 16.
It is this type of thing that makes the Hausaman exclaim,
Haba.!
For
the purpose of section 34(2) of the Act, it does not matter who is
substituted for whom, in so far as the reasons for the substitution are
cogent and verifiable. If a political party says that they believe a
candidate cannot win an election even if he claims to win a primary, what
kind of verification can INEC make, Dr. Izinyon asked rhetorically?
Citing Onuoha y. Okafor
(supra) and Daihatu v. Turaki (supra),
learned counsel submitted that it is the political party that best knows
which candidate can win its election and not the court.
Chief Gadzama made similar submission that the intention of the law
makers is to ensure that the business of substitution of candidates should
be left in the hands of political parties (and) thus would ensure that
credible candidates who could fly the flags of their respective parties to
victory, are presented for election.
This logic, with respect, clearly faults the underlying factor or
need for primaries, particularly in the context of section 34(2} of the Act.
It makes nonsense of
Exhibit B, the Electoral Guidelines for Primary Elections 2006 for
the PDP, the 3rd respondent. Why should the 3rd
respondent produce a document of 32 pages in the name of the National
Chairman and National Secretary of the Party and not follow it?
Why should Article 17 of the Constitution of the Peoples Democratic
Party (Exhibit A)
provide for primaries, if the party will not follow it?
This beats me hollow and hands down.
Learned Senior Advocate for
the 1st appellant quoted profusely from
Craies on Legislation on
mandatory and directory statutes. I should examine some of the extracts
here. He quoted from page 469 of the book:
"The nature of the distinction
was discussed by Millett L.J. In
Fetch v. Guv Inspector of Taxes.
The difficulty arises from the common practice of the legislature of stating
that something 'shall' be done (which means it ‘must’ be done)
without stating what are to be consequences it is not done. The court has
dealt with the problem by devising a distinction between those requirements
which are said to be 'mandatory' (or imperative or obligatory') and those
which are said to be merely directory (a curious use of the word which in
this context is taken as equivalent to permissive). Where a requirement is
mandatory, it must be strictly complied with; failure to comply invalidates
everything that follows. Where it is merely directory, it should still be
complied with, and there may be sanctions for disobedience, but failure to
comply does not invalidate what follows."
I do not think the above
supports the case of the 1st appellant. It is clear from the
above that whether it is mandatory or directory, the person must comply with
the requirement, and sanctions for disobedience will follow. The only
difference is that in the case of a directory requirement, failure to comply
does not invalidate what follows,
as opposed to mandatory requirement where failure to
comply invalidates everything that
follows. I have held that in the light of the word "shall" in
section 34(2) of the Act, the subsection is mandatory and the 3rd
respondent was under a legal duty to give cogent and verifiable reasons.
Both Dr. Izinyon and Chief
Gadzama submitted that as section 34(2) did not contain sanction of penalty
for non-compliance, it is unenforceable. Dr. Izinyon said that the
subsection is at best a moral admonition. In the case of
Fetch v. Guvnor cited at page 41
of the 1st appellant's brief, Millett, LJ, seems to have made a
contrary statement. It is that the Legislature may state that something
shall be done which means it must be done, without stating what are to be
the consequences if it is not done, Millett, LJ, did not say that if the
Legislature does not provide for the consequences if the thing is not done,
then it is unforceable.
Dr. Izinyon quoted the
following from the book at page 42 of the 1st appellant's brief;
"The principle upon which this
question should be decided are well established.
The court must attempt to discern the legislative intention. In
Liverpool Borough Bank vs Turner,
Lord Campbell L.C. said:
'No universal rule can be laid
down for the construction of statutes, as to whether mandatory enactments
shall be considered directory only or obligatory, with an implied
nullification for disobedience. It is the duty of courts of justice to try
to get at the real intention of the Legislature by carefully attending to
the whole scope of the statute to be construed.'"
That is what I have done. I
have considered section 23 of the 2002 repealed Act which gave birth to
section 34(2) of the 2006 Act. I have carefully examined the intention of
the National Assembly by providing for section 34(2) and if is my view that
the intention is to make the provision mandatory. It is an attempt on the
part, of the National Assembly to tighten the provision of section 23 of the
repealed Act.
Still at page 42 of the brief,
Dr. Izinyon quoted as follows:
"I believe, as far as any rule
is concerned, you cannot safely go further than in each case you must look
to the subject matter; consider the importance of the provision that has
been disregarded, and the relation of that provision to the general object
intended to be secured by the Act; and upon a review of the case in that
aspect decide whether the matter is what is
called imperative or only
directory,"
I have also done that. Taking
section 34(2) in the context of primaries in particular, I have no doubt in
my mind that the subsection is not only important but has an imperative
content; considering the general object intended to be secured by the 2006
Act. It is certainly not the intention of the Act to gamble with an
important aspect of the electoral process, such as primaries in the hands of
a political party to dictate the pace in anyway it likes, without any
corresponding exercise of due process on the part of an aggrieved person.
I have taken the pains to deal
with the quotations relied upon by Dr. Izinyon in Craies on Legislation to
make the point that they are not really in favour of his client's case. So
much of the extracts are against the case of his client. Dr. Izinyon and
Chief Gadzama submitted several times that lack of sanction in section 34(2)
of the Electoral Act makes the subsection non-justiciable. With respect, it
is not my understanding that it is the draftsman's trade to provide for
sanction in every section or subsection of a statute. The draftsman can
adopt a number of ways. He could provide a sanction in a section. He could
do so in a combination or agglomeration of sections (and in most cases, he
adopts this method in the concluding section of a part where the statute is
arranged in parts). He could also do so in the penultimate section of the
statute, leaving the last section to short title and extent of application
of the statute. I should not sound "final or dogmatic here. So much depends
upon the nature of the statute and the draftsman's style. And considering
the fact that style is personal to the owner, there cannot be a dogmatic
method.
The most important point here
is that absence of a particular sanction in a particular section, with the
greatest respect, cannot be legal basis for contending that the section is
declaratory and not justiciable. If a section of a statute contains the
mandatory "shall" and it is so construed by the court, then the consequence
of not complying with the provision follows automatically. I do not think I
sound clear. Perhaps I will be clearer by taking section 34(2). The
subsection provides that there must be cogent and verifiable reasons for the
substitution on the part of the 3rd respondent. This places a
burden on the 3rd' respondent, not only to provide reasons but
such reasons must be cogent and verifiable.
If no reasons are given, as in this case; not to talk of the cogency,
and verifiability of the
reasons, then the sanction that follows or better that flows
automatically is that the
subsection was not complied with and therefore interpreted against
the 3rd respondent in the way I have done in this
judgment. It is as simple as
that. It
does not need all the jurisprudence of construction of statute. I
know of no canon of statutory interpretation which foists on a draftsman a
drafting duty to provide for sanction in every section of a statute. That is
quite a new one to me and I am not prepared to learn it. If that is what
Craies on Legislation is saying,
I will never agree with him. No, not even Maxwell, the
greatest world authority on Interpretation of statutes. I am not
however sure that Craies is as superlative as Dr. Izinyon on the issue. I do
not think so.
It is the submission of Dr.
Izinyon and Chief Gadzama that the substitution of candidates is an internal
affair of the 3rd respondent and therefore not justiciable under
section 34(2) of the Act. Let me read. Article 2 of the Constitution of the
Peoples Democratic Party, the 3rd respondent, to make a point
that has occurred to me:
"Subject to the provisions of
the Constitution of the Federal Republic of Nigeria, this Constitution shall
be supreme and its provisions shall have binding force on all members and
organs of the party."
By Article 2, the supremacy of
the 3rd respondent is subject to the supremacy of the
Constitution. This is consistent with the provisions of section 1 of the
Constitution of the Federal Republic of Nigeria, 1999. Right of access to
court is a constitutional right which is guaranteed in the Constitution and
no law, including that of a political party, can subtract from or derogate
from it or deny any person of it. Such a law will be declared a nullity by
virtue of section 1 (3) of the Constitution. Fortunately, Article 2 of the
Constitution of 3rd respondent is not one of such laws. On the
contrary, it vindicates and fortifies section 1(3) of the Constitution and
that is good, very good indeed. The 3rd respondent knows clearly
the constitutional position.
That takes me to the two cases
cited by counsel. They are Onuoha vs.
Okafor (supra) and Dalhatu v.
Turaki (supra). While Dr. Izinyon and Chief Gadzama urged this court to
follow the decisions in the two cases, Prince Fagbemi urged the court to
overrule the decisions. With the greatest respect, none of the submissions
is correct. I will neither uphold the decisions of this court nor overrule
them in this appeal. It is elementary law that a case is decided on its
facts. No case is decided outside its factual milieu. The situation in the
two cases is not similar to the situation in this case. While Onuoha was
decided on an earlier Electoral Act, Dalhatu was decided on the Electoral
Act of 2002. What is involved in this appeal is the Electoral Act, 2006. The
provision of section 34(2) of the 2006
Act was not in any
of the previous Acts and that makes the whole big difference. Apart from the
provision of section 34(2) of the Electoral Act, Article
2 of the
Constitution of the 3rd respondent is yet another reason why this
court cannot follow its earlier decisions in
Onuoha vs Okafor (supra) and Dalhatu
vs. Turaki (supra). Onuoha involved the political party of the NPP.
Dalhatu involved the political party of ANPP. Both cases did not involve the
construction of the equivalent of Article
2 or its prototype
of the 3rd respondent, Peoples Democratic Party.
.
In both
Onuoha and Dalhatu,
this court held that the exercise of the right of a political party to
nominate or sponsor a candidate for an election is the domestic affair of
the party guided by its constitution. In tune with
Onuoha and Dalhatu, I am guided
by Article 2 of the Constitution of the 3rd respondent and
the guidance has fortified my position on the justiciability of section
34(2) of the Electoral Act. If there was a similar provision in
Onuoha and Dalhatu, this
court might have come to a different decision.
Cases are decided on their
peculiar facts in the light of the enabling law. In both
Onuoha and Dalhatu,
there was no section 34(2) of the Electoral Act, 2006. There was also no
Article 2 of the Constitution of the 3rd respondent. It appears
that I am repeating myself. Such a repetition is good for emphasis, and I
like it.
At the time the two cases were
decided, they were correctly decided on the appropriate Electoral Acts,
Accordingly, I do not see my way clear in overruling them because there is
nothing to overrule. This court could overrule its previous decision which
was given wrongly or per incuriam.
I will not therefore obey Prince Fagbemi. Similarly, I cannot
follow the two cases because they are clearly different from the situation
in this appeal. And that is my reason for disobeying Dr. Izinyon and Chief
Gadzama. This court can only follow its previous decision which is decided
on generally similar facts. I want to say very loud and clear and without
equivocation that this case is completely different from the two cases and
there is no legal basis for the submissions of the three Senior Advocates.
They will be kept in the law reports for application in appropriate cases.
The Court of Appeal was
correct when it said at page 680 of the Record;
"Is section 34 of the
Electoral Act 2006 justiciable or non-justiciable? My answer is that it is
justiciable. There must be a check on whether the laid down procedure is
followed in the process of substitution of a candidate,
at the instance of
the person adversely
affected. INEC and the party who both have roles to play under that
section cannot continue to be a judge in their own case.
Section 34(2) must be under judicial surveillance,"
Both Dr. Izinyon and Chief
Gadzama by their submissions have downgraded section 34(2) to the level of a
toothless dog which can only bark but cannot bite because of lack of teeth.
With respect, I am not with them. Contrary to their interpretation, the word
"shall" in section 34(2) is mandatory and therefore peremptory in content.
Mr. Bala, counsel for the 1st respondent in the Court of Appeal,
captured the real essence of section 34(2) when he submitted in that court
that the subsection injects a new provision fundamentally different, legally
and politically. It asks for cogent and verifiable reasons before any
substitution can be effected so as to curb the lawlessness that marked the
substitution of candidate in the 2003 elections.
Let me take
Exhibits K, L and
L1 in the light of
section 91(3) of the Evidence Act. The subsection provides:
"Nothing in this section shall
render admissible by a person interested at a time when proceedings were
pending
or anticipated involving a dispute as to any fact which the statement might
tend to establish."
Learned Senior Advocate for
the 1st appellant said that
Exhibit K was made
on 18/1/07 and the suit was filed on 17/1/2007 when the 1st
appellant and the 3rd respondent were not parties.
Exhibit K forwarded
to the 2nd respondent the names of 1st appellant and
Col. Lambert O. Iheanacho (Rtd) as governorship candidate and Deputy
respectively, for
The defence presented by the 1st
appellant, in my view, is neither here nor there. The fact that the 1st
appellant and the 3rd respondent were not parties at the material
time does not make section 91(3) of the Evidence Act inapplicable. What the
subsection provides is that the person must be interested in the suit at the
time proceedings were pending or anticipated. It is clear from the reliefs
sought by the 1st respondent that the 3rd respondent
was interested or had an interest in the proceedings. Considering the fact
that Exhibit K was made a
day after the filing of the suit, the exhibit is caught by the provision of
section 91 (3) of
the Evidence Act as it was made by the National Chairman and
National Secretary of the 3rd respondent.
I cannot see any interest more than this. See
Apena v. Aiyetobi (1989) 1 NWLR (Pt.
95) 85; Gbadamosi vs. Kabo Travels Ltd(2000) 8
nwlr (Pt. 668) 243; Kankia v.
Maigemu (2003) 6 NWLR (Pt. 817)
496,
Exhibit L was made on 2/2/07
by the 3rd respondent under the signature of National Chairman
and the National Secretary. It reaffirmed the position in
Exhibit K,
that, is
the names of the 1st appellant and Col. Lambart O. Iheanacho as
the Governorship and Deputy Governorship candidates of 3rd
respondent. Exhibit L
moved further than Exhibit
K by indicating that the 1st appellant was
substituted for the 1st respondent.
Exhibit L1 is
another reconfirmation of the candidature of 1st appellant and
Col. Lambart O. Iheanacho. Exhibit
L1 moved a bit further than both
Exhibits K and
L by indicating that
the 1st respondent's name was substituted in error. The nature of
the error was not indicated in the exhibit.
While Exhibit L referred to a
letter dated 18/1/07. It should be noted that
Exhibit L1 cancelled
February and wrote “Jan” in long hand . I seem to
see confusion in the 18/1/07 and 18/2/07 dates. I will not take the issue
because it is not important.
What is important is that both
Exhibits L and
L1 were made on the
same date of 2/2/07. By the admission of the 1st appellant that
the suit was filed on 17/1/07 the two exhibits are clearly caught by section
91(3) of the Evidence Act, and I so hold. Let me look at the other side of
the coin. 1st appellant said at page 56 of his brief that the 3rd
respondent and himself became parties on 6/2/07.
That is only four days after
Exhibits L and L1
were made. In either way, section 91 (3) is violated.
The Court of Appeal,
considering the exhibits in the context of section 91 (3) of the Evidence
Act, said at page 685 of the Record:
"By virtue of section 91(3) of
the Evidence Act any document made in anticipation of a suit is inadmissible
particularly Exhs. L and L1 in this appeal."
I cannot fault the above
statement of the Court of Appeal. The Court is correct.
Learned Senior Advocate cited
the case of Ibori v. Agbi (2004) 6
NWLR (Pt. 868) 78 to the effect that once a document is admitted by
consent, none of the parties will be allowed to recile from it as they are
estopped from doing so. I am not quite comfortable with that conclusion
because it does not fall in line with previous decisions of this court.
Uwais, JSC (as he then was) made a distinction between a class of evidence
which is absolutely inadmissible by virtue of some statutory provisions and
another class which is made admissible under certain conditions. That was in
the case of Anyebosi v. R. T. Briscoe
Nig. Ltd. (1987) 6 SCNJ.9. Uwais, JSC rightly, in my view, held that in
the former class the evidence cannot be acted upon whether it was admitted
by counsel of the parties. In my view, this case clearly comes within the
first class and the
statutory provision is section 91(3). After all, section 91(3)
is in absolute terms with the mandatory “shall” and therefore agrees with
what Uwais, JSC(as he then was) said in
Anyebosi. I should thank Dr.
Izinyon for citing the authority. That is good advocacy.
Parties, by sheer collusion
and for their mutually anticipated benefit, cannot give consent to the
admission of a document which the Evidence Act clearly provides is
inadmissible. As admission of such evidence will clearly run counter or
against the provision of the Evidence Act, the court will ignore the so
called consent and rule that the evidence is inadmissible. A general
statement as in Ibori cannot,
with respect, be correct. The doctrine of estoppel cannot work in
favour of parties who mutually give their consent or agree to an illegality.
Estoppel, an
equitable principle, cannot condone illegality. It rather aids justice and
fair play.
I think I can stop here. I
need not go into the aspect of obedience or disobedience of the order of
interim injunction. It was not raised as an issue in any of the briefs and 1
do not know why Dr. Izinyon took it up in his brief.
In sum, this appeal has no
merit. It therefore fails and is dismissed. I make the following orders:
(1)
I declare that there are no cogent and verifiable reasons for the 2nd
and 3rd respondents to change or entertain the change of the name
of the 1st respondent as candidate of the 3rd
respondent for the April 14, 2007 State Governorship Election in Imo State.
(2)
I hereby grant an
order of
injunction
restraining the
2nd and 3rd respondents from changing or
substituting the name of the 1st respondent with that of the 1st
appellant or any other person as 3rd respondent's candidate for
the April 14, 2007 Imo State Governorship Election.
I
award
Reasons for Judgement delivered by
George Adesola Oguntade,
J.S.C
The respondent, who was the
plaintiff at the Federal High Court (and he is hereinafter referred to as
the plaintiff) filed a suit against the 2nd respondent (i.e.)
INEC, as the defendant claiming the following reliefs in his amended
Statement of Claim
"1.
A declaration that the option of changing or
substituting a candidate whose name is already submitted to INEC by a
political Party is only available to political party and/or the Independent
National Electoral Commission (INEC) under the Electoral Act 2006, only
(when) the candidate is disqualified by a court order (sic).
2.
A declaration that under section 32(5) of the Electoral Act 2006 it
is only a court of law by an order that can disqualify a duly nominated
candidate of a political party whose name particulars (sic) have been
published in accordance with section 32(3) of the Electoral Act
3.
A declaration that under the Electoral Act 2006, Independent National
Electoral Commission (INEC) had no power to screen, verify or disqualify a
candidate once the candidate's political party has done its own screening
and submitted the name of the plaintiff or any candidate to the Independent
National Electoral Commission (INEC).
4.
A declaration that the only way Independent National Electoral
Commission (INEC) disqualify, change or substitute a duly nominated
candidate of a political
party is by court order.
5.
A declaration that under section 32(5) of the Electoral Act, 2006, it
is only a court of law, after a law suit, that a candidate can be
disqualified and it is only after a candidate is disqualified by a court
order that the Independent National Electoral Commission (INEC) can change
or substitute a duly nominated candidate;
6.
A declaration that there are no cogent and verifiable reasons for the
defendant to change or entertain the change of the name of the plaintiff as
the candidate of the Peoples Democratic Party (PDP) for the April 14, 2007
Governorship Election in Imo State.
7.
A declaration that it is unconstitutional, illegal and unlawful for
the defendant to change the name of the plaintiff as the governorship
candidate of Peoples Democratic Party (PDF) for Imo State in the forth
coming Governorship, election in lmo State after the plaintiff has been duly
nominated by the Peoples Democratic Party (PDP) as its candidate and after
the Defendant has accepted the nomination and
published the name and particulars of the plaintiff in accordance
with section 32(3) of the Electoral Act, 2006 until the High Court
disqualifies the
plaintiff or until cogent and verifiable reasons are given to the Defendant
by whosoever desires to make the change.
8.
An order of perpetual injunction restraining the Defendant from
changing or substituting the name of the Applocant as the Imo State Peoples
Democratic Party Governorship candidate for the April 2007 Imo State
Governement Election unless or until a court order is made disqualifying the
plaintiff and/or until cogent and verifiable reasons are given as required
under section 34(2) of the Electoral Act 2006?"
Several documentary exhibits
were annexed to the amended
Statement of Claim. Two persons- Engineer Charles Ugwu and the
Peoples Democratic Party were at their own request later joined to the suit
as 2nd and 3rd defendants respectively.
The 1st defendant
filed a separate Statement of defence whilst the 2nd and 3rd
defendants filed a joint Statement of defence. The suit was tried by Nyako
J. at the Federal High Court,
"In the instant case, the 3rd
defendant submitted the name of the plaintiff as its Governorship candidate;
Informed INEC of its change of candidate and gave INEC a reason for the
change. It is left for INEC to verify the reason or not. But pursuant to all
the above, I will say that the political party is within its power to so
change its candidate and have (sic.) so done as far as the parties on
record are concerned,"
Dissatisfied with the judgment
by Nyako J. the .plaintiff approached
the Court of Appeal,
The 2nd and 3rd
defendants at the trial court were
dissatisfied with the judgment of the court below. Each of
them has filed before this Court an appeal. In the appeal by the 2nd
defendant, the issues for determination were identified as the following:
1.
Whether the decisions of this
Honourable Court in
Onuoha v Okafor
(1983)14 NSCC 494 and Dalhatu vs
Turaki (2003) 15 NWLR (Pt 843) 310
on issues of nomination and
sponsorship of candidate by a political party have been overtaken by
the provisions of Section 34(1) (2) of the Electoral Act, 2006.
(Encompassing grounds 4 and 11 of
the Notice of Appeal).
2
Whether
the learned Justices of the
Court of Appeal were right in holding that Section 34 of the Electoral Act,
2006 is justiciable. (Encompassing
grounds 1 and 6 of the Notice of Appeal).
3
Whether the learned Justices of the Court of Appeal were right in the
interpretation of Section 34(1)(2) of the
Electoral Act, 2006 (Encompassing
grounds 2, 3, 5, 6, 7, 8, 10 and 17 of the Notice of Appeal).
4.
Whether the learned Justices of the Court below were right in holding
that Exhibits K, L, and L1
had no probative value having regard to the admission by consent of the said
Exhibits by parties at the stages of the proceeding.
(Encompassing grounds 9 and 14 of
the Notice of Appeal). "
The 3rd defendant
in its own brief identified one issue as arising for determination. The
solitary issue reads:
"Whether the Court of Appeal
was right when it held that the action before the trial court being one of
sponsorship and nomination of a candidate by a political party was
justiciable i.e. has section 34(1)(2) however interpreted taken the issue of
nomination and sponsorship of a candidate outside the Supreme Court decision
in:
(a)
P.C. Onuoha v. R.B.K Okafor(1983) SNLR pg
244.
(b)
Dalhatu v.Turaki
(2003)15 N.W.L.R. (Pt,843)
pg, 300 (Distilled
from Grounds 1 & 2 of the Notice of Appeal)?
For an appreciation of the
issues as discussed in this judgment, it is necessary to examine the facts
leading to the dispute out of which this ppeal arose. I gratefully adopt the
summary of the said facts as succinctly, set out by Adekeye JCA (who
presided at the court below) in her lead judgment.
Summary of Facts
The facts are that the
appellant emerged winner at the Governorship primaries conducted by the
Peoples Democratic Party for
On the issues settled before
the trial court as to whether it had jurisdiction to entertain the suit, the
learned trial judge found in favour of the Federal High Court having
jurisdiction over the suit as it affected the 1st Respondent a
Federal Government Agency. The learned trial judge held that the whole case
is hinged on the interpretation of section 34 of the Electoral Act 2006. In
the penultimate paragraph of the judgment at pages 573-574 of the record of
proceedings the learned trial judge held that:-
“By the provision of section
34 of the Electoral Act 2006, I find that a political party has the power to
change its nominated candidate for another any time before 60 days to
election. In its exercise of the power of change, it needs to inform the
INEC in writing not in any prescribed form of the change. It will also give
INEC cogent reason for the change which INEC should be able to verify. In
the instant case the 3rd Respondent submitted
the name of the
plaintiff as its Governorship candidate informed INEC of its change of
candidate and gave INEC a reason for the change. It is left for INEC to
verity the reason or not.
But pursuance to all the above, I will say that the
political party is which its power to so change its candidate and have done
so as far as the parties on record are
concerned. Consequently I
hereby declare as follows:
Relief 1
in the negative
Reliefs
2-9
appear to have been abandoned as they were not addressed.
Relief 6-1
I answer to the effect that
a reason was given and the duty of verification lies with INEC.
Relief 7
I affirm only to the extent
that a Court disqualification of a candidate is at a requirement of either
section 32(3) or section 34 of the
Electoral Act 2006 for a
change of candidate.
Relief 8
fails and cannot be granted
because the political party has the power to change its candidate in
compliance with the laid down procedure."
My learned brother Tobi JSC
has in his lead judgment exhaustively dealt with the principal issues for
determination in the appeal. He has ably explained why the appeal must fail.
I agree with him and adopt his reasoning as mine. I wish however, for the
sake of emphasis, to deal first with the issue of jurisdiction raised by the
two appellants and secondly
whether or not the 3rd defendant in its attempt to
substitute the 2nd
defendant/appellant
for the plaintiff complied with the applicable provisions of
the Electoral Act 2006.
The appellants have argued
with remarkable gusto that the
question whether or not a party permitted a particular person
to contest the election on its behalf is not justiciable by the court. It
was argued that the, court would be dragged into a controversy of a
political nature if it engaged in the determination of which of two or more
candidates ought to stand an election
for the party.
This court in
P.C. Onuoha v. R. B. K.
Okafor (1983) S.C.N.LR.244
took the position that the
court should not delve into the issue concerning which of two or more
competing candidates should stand for a party at an election. This court
said:
"The matter in controversy in
the appeal is whether the court has the jurisdiction to entertain a claim
whereby it can compel a political party to sponsor one candidate of the self
same political party. If a court could do this, it would in effect be
managing the political party for the members thereof. The issue of who
should be a candidate of a given political party at any election is clearly
apolitical: one to be determined by the rules and constitution of the said
party. It is thus a domestic issue and not such as would be justiciable in a
court of law."
There are other cases
including Dalhatu v. Turaki [2003] 15 NWLR (Pt. 843) 300 inclining to
the same view. My humble view on the decision
in Onuoha v. Okafor (supra)
is that the same has ceased to be a useful guiding light in view of
the present state of our political life. I have no doubt that the reasoning
in the case might have been useful at the time the decision was made. It
seems to me, however, that in view of the contemporary occurrences in the
political scene, the decision needs to be reviewed or somewhat modified. If
the political parties, in their own wisdom had written it into their
Constitutions that their candidates for election would emerge from their
party primaries, it becomes unacceptable that the court should run away from
the duty to enforce compliance with the provisions of the parties'
Constitution. The court did not draft the Constitutions for these political
parties. Indeed, the court, in its ordinary duties, must enforce compliance
with the agreements reached by parties in their contracts. Even if the
decision in Onuoha v. Okafor (supra) might have been acceptable at
the time it was made, the contemporary bitterness and acrimony now evident
in this country's electoral process dictate that the decision be no longer
followed. An observer of the Nigerian political scene today easily discovers
that the failure of the parties to ensure intra party democracy and live by
the provisions of their constitutions as to the emergence of candidates for
elections is one of the major causes of the serious problems hindering the
enthronement of a representative government in the country. If a political
party was not to be bound by the provisions of its constitution concerning
party primaries, why would there be the need to send members of the parties
aspiring to be candidates for an electoral offices on a wild goose chase
upon which they dissipate their resources and waste of time. Would it not
have made better sense in that event for the political parties to just set
out the criteria for the emergence of their candidates for electoral offices
and then reserve to themselves (i.e. the parties) the ultimate power to
decide who should contest and who should not.
I am fortified in my view by
the provisions of sections 222, 223 and 224 of the 1999 Constitution which
provide:-
"222. No association by
whatever name called shall function as a political party, unless -
(a)
the names and addresses of its national
officers are registered with the Independent National Electoral Commission;
(b)
the membership of the association is open
to every citizen of
(c)
a copy of its constitution is registered
in the principal office of the Independent National Electoral Commission in
such form as may be prescribed by the Independent National Electoral
Commission;
(d)
any alteration in its registered
constitution is also registered in the principal office of the Independent
National Electoral Commission within thirty days of the making of such
alteration;
(e)
the name of the association, its symbol or logo does not contain any
ethnic or religious connotation or give the appearance that the activities
of the association are confined to a part only of the geographical area of
Nigeria; and
(f)
the headquarters of the association is
situated in the
223(1)
The constitution and rules of a political
party shall
(a)
provide for the periodical election on a
democratic basis of the principal officers and members of the executive
committee or other governing body of the political party; and
(b)
ensure that the members of the executive
committee or other governing body of the political party reflect the Federal
character of
(2)
For the purposes of this section
(a)
the election of the officers or members of
the executive committee of a political party shall be deemed to be
periodical only if it is made at regular intervals not exceeding four years;
and
(b)
the members of the executive committee or other governing body of the
political party shall be deemed to reflect the federal character of Nigeria
only if the members thereof belong to different States not being less in
number than two-thirds of all the States of the Federation and the Federal
Capital Territory, Abuja.
224.
The programme as well as the aims and objects of a political party
shall conform with the provisions of Chapter II
of this Constitution."
One observes that section
222(c) above provides in a mandatory language that all political parties
shall file a copy of their Constitution with INEC. Section 222(d) also
enjoins that any alteration in the constitution of political parties shall
be notified to INEC. A most reflective and careful analysis of these
provisions of the 1999 Constitution, which is the Grundnorm of Nigeria
conveys that these provisions were deliberately stated in the Constitution
so that the political parties may strictly observe the provisions.
Notwithstanding the above
observation, if is my firm view, that on the available facts on this case, I
do not need to even consider the relevance of the decision in Onuoha
v.Okafor (supra). The core question I need to decide is whether or not
the 3rd defendant complied with the provisions of section 34 of
the Electoral Act, 2006. This question has nothing to do with the decision
in Onuoha vs. Okafor. The undisputed facts of this case, are that a
number of candidates, all being members of the 3rd defendant
indicated interest in contesting as the Governorship candidate in the 2007
elections in
Nigeria. These candidates too
part
in the party primaries whereat the delegates of the 3rd defendant
voted to nominate a candidate for the position of the Governor of Imo State.
The undisputed results of the primary election tendered, as Exhibit E show
that the plaintiff came first with 2,061 votes whilst the 2nd
defendant placed 16th with 36 votes.
The third defendant sent the
name of the plaintiff to INEC as its candidate, for the Imo State
Governorship election. One would think that the action of the third
defendant in sending the name of the plaintiff to INEC was in deference to
the result of the election. Later however, with a little more than 60 days
to the election on 19/1/2007 vide exhibit K, the 3rd defendant
sent the 2nd defendant's name to INEC in substitution for the
plaintiff’s. In reaction, the plaintiff brought his suit. Sections 32 and 34
of the Electoral Act provide:
"32(1)Every
political party shall not later than 120 days before the date appointed for
a general election under the provisions of this Act, submit to the
Commission in the prescribed forms the list of the candidates the party
proposes to sponsor at the elections.
(2)
The list shall be accompanied by an affidavit sworn to by each
candidate at the High Court of a State indicating that he has fulfilled all
the constitutional requirements for election into that office.
34.(1)
A political party intending to change any of its candidates for any
election shall inform the Commission of
such change in writing not later than 60 days to the election
(2)
any application made pursuant to
subsection (1) of this section shall
give cogent and verifiable reasons
(3)
Except in the case of death, there shall
be no substitution or replacement, of any candidate whatsoever after the
date referred to in subsection (1) of this section."
(italics
and underlining mine)
When sections 32 and 34 above
are related one to the other, it is apparent that the procedure for the
submission of candidates' list for the 2007 election under the 2006
Electoral Act is schematic and graduated. Under section 32(1) of the Act, a
political party has absolute freedom to submit the names of its
candidates 120 days to
the election. Under Section
34(2) however, that freedom is curtailed where a
party is changing its candidates 60 days to the election, the party must
give cogent and verifiable reasons for the change and under section 34(3),
no change may be made except in the event of
death of a candidate earlier chosen.
In this case the 3rd
defendant wrote to say that it was substituting the plaintiff’s name with
that of the 2nd defendant because of an “error". The 3rd
defendant perhaps unmindful of the provisions of section 34(2) of the
Electoral Act, 2006, did not explain the nature of the error which
necessitated the change of the name of the candidate that came first with
that of the one that placed 16th. Does the word 'error' capture
the essence of a 'cogent and verifiable reason' as provided by section 34(2)
above?
In answering this question it
is necessary to draw attention to the previous state of the law under the
2002 Electoral Act which dealt with the change of candidates. The section
provides:
"Any political party which
wishes to change any of its candidates for any election under this Act may
signify its intention in writing to the Commission not later than 30 days to
the date of the Election."
It is manifest that the
requirement under section 34(2) of the 2006 Act that 'cogent and verifiable
reason' be given in order to effect a change of candidates was a deliberate
and poignant attempt to reverse the 2002 Act which led to a situation where
disputes arose even after elections had been concluded as to which
particular candidates had been put up by parties to stand elections.
The meaning of the word
'cogent' as given in The Shorter Oxford English Dictionary is stated to be
"constraining; powerful, forcible, having power to compel assent,
convincing." The same dictionary defines "verifiable" as "that can be
verified or proved to be true, authentic, accurate or real; capable of
verification."
In the light of the above, it
seems to me that the expression 'cogent and verifiable reason' can only mean
a reason self demonstrating of its truth and which can be checked and found
to be true. The truth in the reason given must be self-evident and without
any suggestion of untruth. The reason given must be demonstrably true on the
face of it so as not to admit of any shred of uncertainty. Given the fact
that the 2nd defendant scored 36 votes as against the plaintiff
who scored 2,06l votes at the 3rd defendant's primaries, how can
the reason given by the 3rd defendant as 'error1
qualify to be a "cogent and verifiable reason". In my view the reason given
for the substitution, by the 3rd defendant is patently and
demonstrably false such that it must be dismissed with a wave of the hand.
The 2nd defendant's counsel Dr.lzinyon S.A.N. argued that the
error lay in the fact that the plaintiff did not score 50% of the votes cast
at the primaries and that under 3rd defendant's Constitution a
re-run was necessary between the two top candidates. If a re-run was
necessary, how would that necessitate
substituting a candidate who placed first, scoring 2,061 votes, with
another who placed 16th and scored 36 votes? The inevitable
conclusion to be arrived at is that the reason given for the substitution
was
smokescreen intended to deprive the plaintiff of his right to contest
as the 3rd defendant's candidate in the Imo State Governorship
elections. I have no doubt that the reason given by the 3rd
defendant was deficient and lacked the character required under section
34(2) of the Electoral Act, 2006.
It is for this and other
reasons given in the lead judgment of my learned brother Tobi JSC that I
would also dismiss this appeal. I make the same orders as in the lead
judgment. I subscribe to the order on costs made in the said lead judgment.
Reasons for
Judgement
delivered by
Aloma Mariam Mukhtar,
J.S.C
The reliefs sought by 1st
the respondent in this appeal, as per the content of the amended
statement of claim in the Federal High Court, Abuja are as follows:-
"(1)
A declaration that the option of changing or substituting a candidate
whose name is already submitted to INEC by a political party is only
available to a political party and/or the Independent National Electoral
Commission (INEC) under the Electoral Act, 2006 only when the candidate is
disqualified by a court order.
(2)
A declaration that under section 32(5) of the Electoral Act, 2006 it
is only a court of law, by an order that can disqualify a duly nominated
candidate of a political party whose name and particulars have been
published in accordance with section 32(3) of the Electoral Act, 2006".
(3)
A declaration that under the Electoral Act, 2006, Independent
National Electoral Commission (INEC) has no power to screen, verify or
disqualify a candidate once the candidate's political party has done its own
screening and submitted the name of the plaintiff or any candidate's to the
Independent National Electoral Commission (INEC).
(4)
A declaration that the only way Independent National Electoral
Commission (INEC) can disqualify, change or substitute a duly nominate
candidate of a political party is by court order.
(5)
A declaration that under section 32(5) of the Electoral Act, 2006 it
is only by a court order after a law suit, that a candidate can be
disqualified and it is only after a candidate is disqualified by a court
order, that the Independent National Electoral Commission (INEC) can change
or substitute a duly nominated candidate.
(7)
A declaration that it is unconstitutional, illegal and unlawful for
the 1st and 3rd Defendants to change the name of the
plaintiff with that of the 2nd Defendant as the Governorship
candidate Peoples Democratic
Party (PDP) for
Imo State
in the forthcoming
Governorship Election in Imo State, after the plaintiff has been
duly nominated and
sponsored by the Peoples' Democratic Party as its candidate and after the 1st
Defendant has accepted the nomination and sponsorship of the Plaintiff
and (has) published the name and particulars of the plaintiff in accordance
with section 32(3) of the Electoral Act, 2006, the 3rd Defendant
having failed to give any cogent and verifiable reasons and there being no
High Court order disqualifying the plaintiff.
8.
An order of perpetual injunction restraining the defendants jointly
and or severally by themselves, their agents, privies or assigns from
changing or substituting the name of the Plaintiff as
the Imo
State People
Democratic Party
Governorship candidate for the April 2007 Imo State Government
Election unless or until a court order is made disqualifying the plaintiff
and or until cogent and verifiable reasons are given as required under
section 34(2) of the Electoral Act, 2006."
The learned Federal High Court
judge found as follows:-
"The court does not posses the
requisite knowledge of nomination and sponsorship of candidates for
political parties. The
court can only assist the parties to interprete the provisions of the law.
By the provision of Section 34 of the Electoral Act 2006, I find that a
political party has the power to change its nominated candidate for another
any time before 60 days to election.
In its exercise of the power of change, it needs to inform the INEC
in writing not in any prescribed form of the change.
It will also give INEC cogent reason
for the change which INEC should
be able to verify. In the instant case, the 3rd
Defendant, submitted the name of the plaintiff as
Governorship candidate, informed INEC of its change of candidate and gave
INEC a reason for the change.
It is left for INEC to verify the reason or not. But pursuant to all the
above, I will say that, the political party is
within its power to so change its candidate and have so done
as for as the parties on record are concerned."
The plaintiff was dissatisfied
with the findings of the trial court, and he appealed to the Court of
appeal. The 2nd
defendant cross appealed to the same court.
In the Abuja Division of the Court of appeal, the court as per
Adekeye J.C.A. allowed the appeal, after holding that the pronouncement of
the trial court was not a judicial or judicious exercise of the discretion
of the court in the circumstance of the case, and concluded thus:-
"I shall not hesitate to
conclude that the learned trial judge failed to consider all the aspects of
Section 34 (1) and (2) of the Electoral Act, and same has not met the
justice of this case."
The defendants were not
satisfied, so they appealed to this court. In my view the appeal before this
court revolves around the provision of Section 34 of the Electoral Act. The
two issues formulated in the appellant's brief of argument read as follows:-
“2.
Whether the learned Justices of the Court of Appeal were right in
holding that Section 34
of the Electoral Act,
2006 is justiciable.
3.
Whether the learned Justices of the Court of Appeal were right in the
interpretation of Section 34 (1) (2) of the Electoral Act, 2006."
As regards issue (2) supra,
the grouse of the learned Senior Advocate is the justiciability of Section
34 of the Electoral Act 2006, and the action brought thereupon by the 1st
respondent,
which he submitted is not justiciable, as the said Section 34 of the
Electoral Act does not confer any right of action on any person. I will now
examine the content of Section 34 of the Electoral Act, the provisions of
which read as follows:-
"34 (1) A
political party intending to change any of its candidates for any election
shall inform the Commission of such change in writing not later than 60 days
to the election.
(2)
Any application made pursuant to subsection (1) of this Section shall
give cogent and verifiable reasons.
(3)
Except in the case of death, there shall
be no substitution or replacement of any candidate whatsoever after the date
referred to in subsection (1) of this Section."
In considering the
justiciability or otherwise of the above provision, one has to examine the
claims of the plaintiff, (already reproduced above)
vis
a vis the said provisions, and the provisions of Section 32 (5) of the
Electoral Act from which the machinery of a choice of candidate begins to
roll. This section reads the following:-
"32 (1) Every political party
shall not later than 120 days before the date appointed for a general
election under the provisions of this Act, submit to the commission in the
prescribed forms the list of the candidates the party proposes to sponsor at
the election.
(2)
The list shall be accompanied by an Affidavit Sworn to by each
candidate at the High Court of a State, indicating that he has fulfilled all
the constitutional requirements for election into that office.
(3)
The commission shall, within 7 days of the receipt of the personal
particulars of the candidate, publish same in the constituency where the
candidate intend to contest the election.
(4)
Any person who has reasonable grounds to believe that any information
given by a candidate in the affidavit is fake may
file a suit at the High Court of a State or Federal High Court against such
person seeking a declaration that the information contained in the affidavit
is false.
(5)
If the court determines that any of the information contained in the
affidavit is false the court shall issue an order disqualifying the
candidate from contesting the election,"
Now, as evidenced by the
claims in the Federal High Court the suit was predicated on the above
provisions. Then in the course of the judgment of the trial court the trial
judge found that the case hinged on the interpretation given to Section 34
of the Electoral Act supra. Going back to the Justiciability of Section 34
of the Electoral Act supra, the word justiciable has been defined in the 7th
Edition of Blacks Law Dictionary as "properly brought before a court of
justice; capable of being disposed of judicially (justiciable controversy)".
The provision of Section 32 of the Electoral Act supra is very clear on the
Justiciability of it, and no doubt whatsoever exists on the purpose and
purport of it, and it is my view that a careful study of the provision of
Section 34 of the Electoral Act gleamed against the above definition of the
word justiciable, makes the said Section 34 justiciable. I believe
subsection (2) of the provision has opened an avenue for any candidate that
is aggrieved to have legal interest enure on him, by setting out conditions
that must be met for any change to succeed. In this respect, I hold that the
said Section 34 of the Electoral Act is
justiciable, and I
agree with the learned justice f the Court of Appeal when in the lead
judgment she asked a question and pronounced thus:-
"Is Section 34 of the
electoral Act 2006 justiciable or non-justiciable? My answer is that it is
justiciable.
On the interpretation of
Section 34 of the Electoral Act, it is a cardinal principle of law that
statutes must be given their
ordinary and straight forward interpretation. When interpreting the
law a court must not go beyond the
ambit of the intendment of the legislator by bringing
extraneous matters to it. In
Halsburys
Statutes of England third Edition volume
32 pages 364 -
365 the authors re-echoed
the principles of
interpretation thus:-
"The golden rule is that the
words of an Act are prima facie to be given their ordinary and natural
meaning, or, as is sometimes said, their popular meaning; see
St. John, Hamstood, Vestry v. Cotton
(886), 12 App. Cas. 1 at page 6 per Lord Halsbury, L.C.;
Wokes v.
Don Castar Amalgamated Collieries,
Ltd, (1940) A.C. 1014, (1940) 3 ,A11 E. R. 549,
at page 1022 and page 553, respectively, per Viscount Simon, L. G.
........
The rule has been in existence
for many years and the classical statement of it is contained in the
judgment of Wensley dale in Grey v,
Pearson (1857), where he said: -
"In construing wills and
indeed statutes, and all written instruments, the grammatical and ordinary
sense of the words is to be adhered to, unless that would, lead to some
absurdity, or some repugnance or inconsistency with the rest of the
instrument, in which case the grammatical and ordinary sense of the words
may be modified, so as to avoid that absurdity or inconsistency but no
further."
The salient words in
subsection (2) of Section 34 of the said law are 'cogent' and 'verifiable',
which are defined in the said 7th Edition of the Black's
Dictionary as follows:
"cogent
- "compelling or convincing”
Verify - 'To prove to be true, to confirm or establish the truth or
truthfulness of, to authenticate." In the instant case when the 3rd
respondent sought to change the Gubernatorial candidate from the 1st
Respondent to the ,1st appellant, the letter it wrote and
addressed to the Chairman of the 1st respondent did not state any
reason for the change as can be seen from the letter which reads:-
“Forwarding of PDP
Governorship Candidate and
Names of Imo PDF Governorship
candidate and his Deputy in
1.
Chief Charles Chukwuemeka Ugwuh and
2.
Col. Lambert Ogbonna Iheanacho (Rt.)
This is for your information
and necessary action.
Sen. (DR.) Amadu Ali, GCON
National Chairman
OJO Maduekwe, CFR
National Secretary"
Earlier on, on 14th
December 2006, to be precise the same authors of the above letter had
written the same Chairman of INEC giving the name of the lst
respondent as their Gubernatorial candidate for
It is instructive to note that
no reason at all was given for the sudden somersault, not to talk of it
being cogent or verifiable reason.
In fact it was as though that was the first time the 2nd
appellant was forwarding the name of its choice of a gubernatorial candidate
for
In the light bf the above
reasons and the fuller reasons in the lead judgment of my learned brother
Niki Tobi JSC, I also dismiss the appeal, and abide by the consequential
orders made therein.
Reasons for Judgement delivered by
Mahmud Mohammed,
J.S.C
This appeal was heard by this
Court on 5th April, 2007. In a unanimous decision delivered the
same day, the appeal was dismissed. On that day, I pronounced my judgment
dismissing the appeal and stated that I shall give my reasons for doing so
today.
I have seen and read the
reasons given for the judgment by my learned brother Tobi, JSC, which he has
just delivered and I am in complete agreement with him in the way and manner
he tackled and resolved the issues arising for determination in the appeal.
The circumstances surrounding
the dispute that brought the parties to the trial Federal High Court, the
Court of Appeal and finally to this Court, are quite clear and may be
narrated thus: The 1st Respondent as a member of the 2nd
Appellant, P.D.P, took part in the primary election conducted by the 2nd
Appellant aimed at producing a candidate for that political party to contest
the Governorship election for Imo State scheduled for 14th April,
2007. The primary election was conducted in accordance with the constitution
of the party and was held in the State on 14th December, 2006.
The outcome of the primary election contained in the document admitted in
evidence as Exhibit 'E' at the trial Court shows that the 1st
Respondent scored the highest number of 2,061 votes to top the list of 22
candidates who contested that election. The 1st
Appellant who was also one of the contestants,
scored 36 votes ranking 13th position out of the 22 participants.
Based on the result of this primary election, the 2nd Appellant
P.D.P. forwarded the name of the 1st Respondent on 14th
December, 2006, to the 2nd Respondent as its candidate to contest
the Governorship election in
However,
on 19th
January, 2007,
more than one month after submitting the name of the 1st
Respondent to the 2nd Respondent, the 2nd Appellant,
P.D.P. again forwarded the name of the 1st Appellant to the 2nd
Respondent as the
candidate it was
sponsoring to contest
the Governorship election of 14th April, 2007 in Imo State. The 2nd
Appellant in its letter dated 18th January, 2007, to the 2nd
Respondent forwarding the 1st Appellant's name, did not say
anything on the name of the 1st Respondent earlier sent by it to
contest the same election and no reason was given for the action taken by
the 2 Appellant. It was at this juncture that the 1st Respondent
rushed to the trial Federal High Court for redress. While the action was
pending at the trial Court, the 2nd Appellant again by another
letter dated 2nd February,
2007 but delivered to the 2nd Respondent on 9th
February, 2007, explained to the 2nd Respondent that it was
substituting the name of the 1st Respondent with that of the 1st
Appellant because the name of the 1st Appellant sent earlier was
done in error.
At the trial Court, the
learned trial judge after hearing the parties, delivered the judgment of the
Court on 16th Feburary, 2007, dismissing the Plaintiff/1st
Respondent's claim. Aggrieved by that judgment, the Plaintiff/1st
Respondent appealed to the Court of Appeal which after hearing the appeal,
allowed it.
Dissatisfied with the judgment of the Court
of
Appeal delivered
on 20th
March,
2007, the
lst and
2nd Appellants have now
appealed to this Court.
Although in the briefs of
arguments filed by the parties, 4 issues were raised from the grounds of
appeal filed by the 1st Appellant in his brief of argument, 3
issues were framed from the grounds of appeal filed by the 2nd
appellant in its brief of argument, while 3 issues were formulated in the 1st
Respondent's brief of argument with the 2nd Respondent not filing
any brief of argument, the real issues for determination of these appeals in
my view, are issues 2 and 3
in the 1st Appellant's brief of argument which read -
"2.
Whether the learned Justices of the Court of Appeal were right in
holding that Section 34 of the Electoral Act 2006 is justiciable.
3.
Whether the learned Justices of the Court of Appeal were right in the
interpretation of Section 34(1), (2) of the Electoral Act, 2006,"
The stand of the 1st
Appellant on issue 2 is that the learned Justices of the Court below fell
into grave error in holding that Section 34 of the Electoral Ad, 2006, is
justiciable. Quoting the definition of the word ‘Justiciable' from Blacks
Law Dictionary 5 Edition at page 777, learned senior Counsel for the 1st
Appellant argued that having regard to the decisions in the cases of
Shell B.P. Petroleum Development
Company vs. Onasanya (1976) 6 S.C. 89 at 99 and Ayabode v. Balogun (1990) 9
S.C.N.J. 23 at 33 OR (1990)
5 N.W.L.R. (PT. 151)
379, the provisions of Section 34
of the Electoral Act does not give that lst Respondent any right
of action to justify his going to the trial Court for redress.
This was also the position argued for the 2nd Appellant by
its learned senior Counsel.
For the 1st
Respondent however it was submitted that the provisions of Section 34 of the
Electoral Act, 2006 being part of a Statute which provides for a right,
where there is a breach of that right, a Court of Law has jurisdiction to
enquire into the breach in an action brought before the Court in line with
the decision in
Odugbo v. Abu (2001)
14 N.W.L.R. (PT. 732)
45.
Learned senior Counsel to the 1st Respondent further
argued that the 2nd Appellant, P.D.P. being a political party
whose existence and operation under its registered constitution is regulated
by the provisions of the 1999 constitution of the Federal Republic of
Nigeria in Sections 221 and 222 thereof, any dispute between a member of the
political party and the party itself, is justiciable. This is because,
according to the learned senior Counsel, where any rules or regulations were
made pursuant to any constitutional provision, it has a constitutional force
as stated in
Oyeyipo v. Oyinloye (1987)
1 N.W.L.R. (PT. 50) 356 at
378 and
7 Up Bottling Company Limited v. Abiola (1995) 3 N.W.L.R. (PT. 383)
257
at 281.
The provision of Section 34 of
the Electoral Act, 2006, deals with the procedure for political parties
wishing to effect changes in the list of their candidates for any election
already submitted to the Independent National Electoral Commission (INEC).
This section reads -
"34(1) A
political party intending to change any of its candidates for any election
shall inform the Commission
of such change in writing
not later than 60 days to the election.
(2)
Any application made pursuant to subsection (1) of this Section
shall give cogent and verifiable
reasons.
(3)
Except in the case of death, there shall
be no substitution or replacement of any candidate whatsoever after the date
referred to in subsection (1) of this section."
The section clearly imposes a
duty on any political party intending to change its candidate for an
election to do so by informing the Independent National Electoral Commission
(1NEC) in writing within a specified period of not later than 60 days to the
date of the election. The section plainly outlined the manner of forwarding
the information for the change of candidate to the Commission not only to be
made in writing but also in the form of an application which shall state
cogent and verifiable reasons for the intention to effect the change.
Section 34 of the Electoral Act, 2006 contains mandatory provisions which
any political party intending to effect any change in the list of its
candidates submitted to the Commission to contest any election must comply
with.
The Electoral Act, 2006, like
any other Act of the National Assembly enacted in exercise of its powers
under the 1999 Constitution, is a statute whose provisions including Section
34 thereof, are liable to be questioned in any proceeding of Court of
competent jurisdiction in the determination of any question as to the civil
rights and obligations of any person in Nigeria. See Section 6(6)(a)
and (b) of the 1999 Constitution. Therefore in the present case, the 2nd
Appellant, P.D.P political party, had exercised its right signifying its
intention to change its candidate in accordance with the provisions of
Section 34 of the Electoral Act, 2006.
The Appellants are now asserting under this issue that the exercise
of that right is not justiciable.
The plain complaint of the 1st Respondent, a member of the
2nd Appellant, P.D.P. Political party that its application to the
2 Respondent, the Independent National Electoral Commission (INEC) to
substitute his name with that of the 1st Appellant did not
satisfy the requirement of Section 34 of the Electoral Act, cannot be said
to be not justiciable. In other words the 1st Respondent's action
seeking a remedy at the trial Court to determine whether or not the
provision of the section of the statute was complied with in the application
to change his name as a candidate in the Governorship election of 14th
April, 2007 in Imo State with the name of the 1st Appellant, may
be described as anything but certainly not to be given a name not
unjusticiable. The assertion of the Appellants that the provision of
the section is not justiciable in the absence of any sanction for failure to
comply with the section or that the right of a political party to change the
candidate it was sponsoring for an election is an internal affairs of the
political party, has no support whatsoever from any law under the present
dispensation. Section 34 of the Electoral Act, 2006, is therefore
justiciable and the 1st Respondent's action at the trial Court
complaining that the provision of the section of the statute was not
complied with in the bid by the 2nd Appellant to change his name
with that of the
1st Appellant as the candidate sponsored to contest
the Governorship election of 14th April, 2007 in Imo State, was
quite in order being justiciable as found by the Court below. I am further
of the firm view that the lst Respondent being a member the
P.D.P. political party now 2nd Appellant who was aggrieved by the
conduct of his party in the steps taken under Section 34 of the Electoral
Act, 2006, to change his name from the list of candidates submitted to the 2nd
Respondent to contest the election scheduled for 14th April,
2007, has the right to seek redress in a competent Court of law and such
action cannot in law be described as unjusticiable. The jurisdiction of the
trial Court was indeed rightly invoked see
Odugbo v. Abu (2001)
14 N.W.L.R. (PT. 732)
45 at 114 and
Barclays Bank v. Central
Bank(1976) 6 S.C. 175,
For the above reasons and
fuller reasons given by my learned brother Tobi, JSC in his judgment
dismissing this appeal with which I entirely agree, I also dismiss this
appeal for lack of merit and abide by the orders given by Tobi, JSC.
in his judgment including the order on costs.
Reasons for Judgement delivered by
Walter Samuel
Nkanu Onnoghen,
J.S.C.
There are two appeals involved
in the instant case; one by the main appellant, Engineer Charles Ugwu, and
the other by the Peoples Democratic Party; both against the judgement of the
Court of Appeal holden at Abuja in appeal No CA/A/49/07 delivered by
that court on the 20th day of March, 2007 in which the court
allowed the appeal of the 1st respondent, Senator Ifeanyi
Araraume, against the
decision of
the Federal
High
court in suit No.
FHC/ABJ/CS/9/07 dismissing the case of the 1st
respondent as plaintiff before
that court.
The suit at the High court was
initially instituted against Independent National Electoral Commission
(INEC) though appellant
later, upon application, was joined as the 2nd defendant while
the 1st defendant (INEC) brought an application before that court
as a result of which the Peoples Democratic Party (PDP) was joined as the
third defendant.
By
an amended
Statement of
Claim, the
1st
respondent, as plaintiff, claimed the following reliefs:-
“(1)
A declaration that the
option of changing or substituting a candidate whose name is already
submitted to INEC by Party is only available to political party
and/or the independent National
Electoral Commission under the
Electoral Act 2006, only (when)
the candidate is disqualified by a court order (sic).
(2)
A declaration that under section 32(5) of the Electoral Act 2006 it
is only a court of
law by an order that can
disqualify a duly nominated candidate of a political party whose name
particulars (sic) have been published in accordance with section 32(3) of
the Electoral Act 2006.
(3)
A declaration that under the Electoral Act 2006, independent National
Electoral Commission (INEC) had no power to screen, verify or disqualify a
candidate once the candidate's political party has done its own screening
and submitted the name of the plaintiff or any candidate to the independent
National Electoral Commission (INEC).
(4)
A declaration that the only way independent National Electoral
Commission (INEC) can disqualify, change or substitute a duly nominated
candidate of a political party is by court order.
(5)
A declaration that under section 32(5) of the Electoral Act, 2006, it
is only a court of law, after a law suit, that a candidate can be
disqualified and it is only after a candidate is disqualified by a court
order that the Independent National Electoral
Commission
(INEC) can change or
substitute a duly nominated
candidate;
(6)
A declaration that there are no cogent and verifiable reasons for the
defendant to change or entertain the change of the name of the plaintiff as
the candidate of the peoples Democratic Party (PDP) for the April 14th
2007 Governorship Election in Imo state.
(7)
A declaration that it is unconstitutional, illegal and unlawful for
the defendant to change the name of the plaintiff as the Governorship
candidate of Peoples Democratic Party (PDP) for Imo state in the forth
coming Governorship election in Imo State after the plaintiff has been duly
nominated by the Peoples Democratic Party (PDP) as its candidate and after
the Defendant has accepted the nomination and published the name and
particulars of the plaintiff in accordance with section 32(3) of the
Electoral Act, 2006 until the High Court disqualifies the plaintiff or until
cogent and verifiable reasons are given to the Defendant by whosoever
desires to make the change.
(8)
An order of perpetual injunction restraining the Defendant from
changing or substituting the name of the Applicant
as the Imo State Peoples
Democratic Party Governorship
candidate for the April 2007 Imo state
Government Election unless or
until a court order is made disqualifying the plaintiff and/or until cogent
and verifiable reasons are given as required under section 34(2) of the
Electoral Act 2006?"
From the above reliefs, it is
very clear the respondent appears to think that disqualification of a
candidate after nomination of same by the sponsoring political party is the
same thing as substitution or change of that nominated candidate by the
political party concerned. That must account for the way the reliefs are
couched or crafted. However, the two terms or words as used in the
electoral, process mean different things. Substitution of a nominated
candidate is not the same thing as disqualification of a nominated candidate
and from the clear provisions of the Electoral Act 2006, as would be
demonstrated soon, a sponsoring Political Party has the reserved right to
substitute or change its nominated candidate for any election but under
certain laid down conditions, by the Electoral Act, 2006.
Disqualification is defined
as:
"1.
Something that makes one ineligible; esp. a bias or conflict of
interest that prevents a judge or juror from impartially hearing a case or
that prevents a lawyer from representing a party......
2.
The act of making ineligible; that fact or condition of being
ineligible"
See Blacks Law Dictionary, 8th
Ed. 505 -506
On the other hand,
Substitution is defined at Page 1471 of the said Blacks Law Dictionary
thus:-
"1.
A designation of a person
or thing to take the place of another or thing.
2.
The process by which one person or thing takes the place of another
person or thing etc."
From the above it is clear
that substitution and disqualification are two different terms meaning
different things. Even though a person or thing that is disqualified may be
substituted by a qualified person or thing, it does not follow that a
qualified person or thing cannot be substituted by a more or better
qualified person or thing.
Under the Electoral Act, 2006
the circumstances and facts leading to either qualification or
disqualification, or substitution of any candidate for any election are
clearly spelt out and a candidate is supposed to meet the conditions for
qualification to contest any election before being nominated to contest that
election by any political party, which party has the exclusive right of
changing or substituting the said candidate with another candidate for the
said election if it so desires but subject to certain conditions also
imposed by the law. It is clear that a person who is disqualified would
have, but for the disqualifying factor; been qualified.
As stated earlier in this
judgment, the learned trial judge dismissed the claims of the plaintiff/lst
respondent resulting in an appeal to the Court of Appeal which allowed same
based on the construction of the provisions of section 34(2) of the
Electoral Act 2006. The appellants are not satisfied with that judgment
hence the appeal to this court where the issues submitted for determination
by DR. Alex A. Izinyon, SAN for the main appellant in the appellant's brief
of argument filed on 3/4/07 and adopted in argument of the appeal on 5/4/07
are stated as follows:-
"1.
Whether the decisions of this Honourable court in Onuoha vs.
Okafor(1983) 14 NSCC 494 and Dalhatu v. Turaki (2003) 15 NWLR (pt.
843) 310 on issues of nomination and sponsorship of candidates by a
political party have been overtaken by the provision of section 34(1)(2) of
the Electoral Act, 2006. (Encompassing grounds 4 and 11 of the Notice of
Appeal).
2.
Whether the learned justices of the court of Appeal were right in
holding that section 34 of the Electoral Act, 2006 is justifiable.
(Encompassing grounds 1 and 6 of the Notice of Appeal).
3.
Whether the learned justices of the court of Appeal were right in the
interpretation of section 34(1)(2) of the
Electoral Act, 2006.
(Encompassing grounds 2, 3, 5, 6, 7, 8, 10 and 12 of the Notice of Appeal)
4.
Whether the learned
Justices of the court below were right in holding that Exhibits K.L and L1
had no probative value having regard to the admission by consent of the said
Exhibits by parties at the stage of the proceeding. (Encompassing grounds 9
and 14 of the Notice of Appeal)."
On the other hand Chief J.
Gadzama, san for the 2nd
appellant, the Peoples Democratic Party, in the appellant's brief of
argument filed on 4/4/07 and also adopted in argument on 5/4/07 raised the
following three issues for determination:-
"(a)
Whether the Court of Appeal was right when it held that the action before
the trial court being one of sponsorship and nomination of a candidate by a
political party was justiciable i.e has section 34(1)(2) however interpreted
taken the issue of nomination and sponsorship of a candidate outside the
Supreme Court decision in;
(a)
P.C. Onuoha vs RBK Okafor 1983, SNLR Pg 244.
(b)
Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 300 (Distilled from
Grounds 1 & 2 of the Notice of Appeal)?
(b)
Whether the Court below was right or not in holding that exhibits L,
L1 & K had no probative value, when the pieces of evidence above were
admitted by consent of parties.
(c)
Whether the court of Appeal as constituted by a three man panel
instead of 5 Justices, had jurisdiction to hear and determine the matter
before it having regard to fundamental, constitutional and salient legal
issues raised in the Appeal."
It should be pointed out here
and now that the learned Senior Advocate for the 2nd appellant
during oral argument of the appeal on 5/4/07 withdrew the third issue which
was accordingly struck out by this court. In effect, the 2nd
appellant submitted two issues for the determination of the appeal.
In the 1st
respondent's Brief of argument filed on 4/4/07 and adopted in argument of
the appeal by L.O.Fagbemi Esq,
SAN, the
following issues
have been
formulated for determination:-
"(1)
Whether, having regard to all relevant laws, documentary evidence before the
court and the complaint in the
grounds
of appeal, it can be said that,
the court below was wrong in reaching a conclusion that, there was non
compliance with section 34(2) of the Electoral Act 2006 in the purported
substitution of the name of the plaintiff with that of the end (sic)
Respondent?
(2)
Whether steps taken in breach of a court order and in purporting to
substitute the name of the plaintiff are not null and void? And
(3)
Whether the plaintiff's
case is justiciable."
The
facts,
most of
which are
largely undisputed
include the following:-
The 1st respondent
participated in the primary election of the
PDP, 3rd
respondent in the main appeal and
appellant in the 2nd appeal, to elect
the Governorship candidate of the said
PDP for the Imo state
Governorship election scheduled for 14th April 2007. The said
Governorship primaries was conducted by the
PDP in
However, on the 19th
day of January 2007, the 3rd respondent (PDP)
forwarded the name of the appellant to the 2nd respondent vide a
letter dated 18th January, 2007 exhibit K as the candidate it was
sponsoring for the 14th April 2007 Imo state Governorship
elections. Exhibit K said nothing or made no reference to the earlier list
submitted on 14/12/06 -exhibit F neither did it say that it was substituting
the name of the 1st respondent with that of the appellant nor
assigned any reason for the action, it was at this point in time that the 1st
respondent instituted the action at the High Court claiming the reliefs
earlier reproduced in this judgment. However, by a letter dated 2/2/07 but
delivered to the 2nd respondent on 9/2/07, the 3rd
respondent stated that it was substituting the name of the 1st
respondent with that of the appellant. The said letter was admitted as
Exhibit L and it stated the reason for the substitution to be that the
earlier
name of
the 1st respondent was submitted to the 2nd
respondent in error.
In arguing the appeal, learned
senior Counsel for the appellant Dr Izinyon.
san submitted that the decision of
this Court in Onuoha vs.
Okafor and Dalhatu v.
Turaki on
nomination and sponsorship of candidate has not been overtaken by the
provisions of section 34(1)(2) of the Electoral Act, 2006; that once any
change is made within time, it still borders on nomination and sponsorship;
that section 34(1)(2) of the Electoral Act, 2006 can only apply to move
nomination and sponsorship outside the domestic affairs of the party when it
is outside the time stipulated by section 34(1) of the Electoral Act, 2006;
that the lower court was in error in the interpretation placed on section
34(1)(2) of the Electoral Act, 2006; that section 34(1)(2) is not
justiciable; that the lower court erred in holding that exhibits K, L and Li
have no probative value having been admitted by consent of parties and the
fact that they were made without any disobedience of court orders; that the
word
"shall" in section 34(2) of the Electoral Act, 2006 is
directory and not mandatory; that since section 34 contains no sanction or
penalty it is directory and not mandatory and urged the court to allow the
appeal.
Chief J. Gadzama,
SAN for the 2nd appellant submitted that the question as
to whether or not the sponsorship and nomination of candidate is justiciable
has been settled by this Court in
Dalhatu vs Turaki, (2003) 15 NWLR, (pt 843) 300 and
Onuoha vs Okafor (1983) SNLR 244; that the court below erred in holding
that exhibits K. L and Li had no probative value when the exhibits were
admitted by consent of the parties; that the 3rd
respondent/appellant had acted in compliance with section 34 of the
Electoral Act, 2006;
that the only
remedy opened
to the
1st respondent who is contesting that his name has been
wrongly substituted, is in damages and that it is not the duty of the court
to intervene and urged the court to allow the appeal.
On his part, learned senior
Counsel for the 1st respondent, L.O.
Fagbemi Esq, SAN submitted that the respondent
failed to comply
with the mandatory provisions of section 34(2) of the Electoral Act, 2006 in
purporting to change the name of the 1st respondent and that the
non-compliance renders any step taken null and void; that the 3rd
respondent did not establish the existence of any cogent and verifiable
reason to enable it substitute the name of the 1st respondent;
that exhibits K and L by which the 3rd respondent purported to
substitute the name of the 1st respondent are void for being made
in breach of a court order and/or made in violation of section of the
Electoral Act, 2006. Finally learned Senior
counsel invited the court to revisit its decision in
Onuoha vs Okafor and
Dalhatu vs Turaki as the two decisions are being used to perpetrate
injustice and urged the court to depart from its decision in those cases and
dismiss the appeals.
It is settled law that the
issue of nomination or sponsorship of an election candidate is within the
domestic affairs of the political parties and that the courts have no
jurisdiction to determine who should be
sponsored by any political party as its candidate
for any election. "That is the law as reflected in
Onuoha vs Okafor and
Dalhatu vs Turaki also supra. The question for determination in the
instant appeal is primarily whether that position still represents the law
in view of the provisions of section 34(2) of the Electoral Act, 2006.
Without wasting time, I will
say emphatically, that Onuoha vs
Okafor and Dalhatu vs Turaki
still remain good law on the sound principles decided therein but the
relevant and very important question to be determined in the instant appeal
is whether the instant case falls within the facts and applicable law in the
decisions in Onuoha vs Okafor and
Dalhatu vs. Turaki vis a vis
section 34(2) of the
Electoral Act, 2006.
Now
section 32(1) & (2) of the Electoral Act, 2006, provides as follows:-
"(1)
Every political party shall not later than 120 days before the date
appointed for a
general election under the
provisions of this Act, submit to the Commission in the prescribed forms the
list of the candidates the party proposes for sponsor at the elections.
(2)
The list shall be accompanied by an Affidavit sworn to by each
candidate at the High court of a state, indicating that he has fulfilled all
the Constitutional requirements for election into that office."
There is no doubt that the 3rd
respondent/appellant complied with that provision when it sent exhibit F to
the 2nd respondent containing the name of the 1st
respondent on the 14th day of December 2006 for an election
billed for 14th April 2007. It should be noted that the
provisions of section 32(1) & (2) do not interfere with the decision of the
party as to who should be sponsored as its candidate for any election. The
provisions talk of what the party must do after choosing its candidates so
as to enable the 2nd respondent which is Constitutionally charged
with, the responsibility of organizing, conducting elections etc in Nigeria
to put its house in order for the huge exercise. However, granted that
exhibit K which contained the name of the appellant and dated 18th
January 2007 is the document to be relied upon in saying that the said
appellant is the sponsored candidate of the 3rd
respondent/appellant, it is very clear that by simple addition and
subtraction the said exhibit K does not meet the requirement of section
32(1) of the Electoral Act, 2006 particularly as the number of days required
are less than the 120 days before the date i.e 14th April 2007
appointed for a general election under the provisions of the Act.
Now section 34(1), (2) and (3)
of the Electoral Act, 2006 provides as follows;-
"34(1) A
political party intending to change any of its candidates for any
election shall inform the Commission of such change in writing not later
than 60 days to the election.
(2)
Any application made pursuant to subsection(1)
of this section shall
give cogent and
verifiable reasons.
(3)
Except in the case of death, there shall
be no substitution or replacement of any candidate whatsoever after the date
referred to in subsection (1) of this section."
Emphasis supplied.
It is very clear from the
above provisions that the right or power to nominate a candidate to be
sponsored by a political party remains with the party just as the party
still retains the right to change or substitute such candidate. Under the
Electoral Act, 2002 if a political party desired to change or substitute its
candidate it has to do so within 30 days to the election whereas under the
current law particularly section 34(1) of the Electoral Act, 2006, the party
must do so within 60 days to the election in question. There is however a
condition for the change to be effective which condition was never in the
Electoral Act, 2002. That requirement is, that the political party intending
to change or substitute its candidate must
"give
cogent and verifiable
reasons" for wanting the change to be effected,
it does not stop there, it goes further in subsection 3 to enact that
no substitution of a candidate shall be effected less than 60 days to the
election except in the case of the death of the previous candidate.
Section 23 of the Electoral
Act, 2002
provides as follows:-
"Any political party which wishes to change any of its candidates for any
election under this Act may signify its intention in writing to the
Commission not later than 30 days to the date of the Election."
At this stage, it is important
to remind ourselves that
It is trite that it is the
duty of the Legislature to make, laws which are to be interpreted by the
judiciary and executed by the Executive arms of the government.
In line with the
constitutionally assigned role of interpretation of the laws of this nation,
this Court will always remain true no matter what. Looking at the words used
by the legislature in section 34(11 and (2) of the Electoral Act, 2006 it is
clear that the intention of the legislature is to say that even though the
right of choice of a candidate to be sponsored for any election remains the
special preserve of the political parties, just as the right to change or
substitute such candidates, that right is no longer to be exercised
capriciously or any how or without recourse to reasonable expectations of
decent society. I therefore do not agree with learned Senior Counsel for the
appellants that in the case of change or substitution of candidates for any
election it is still business as usual particularly as the law expressly
states that the substitution must be made within 60 days to the election and
there must be
"cogent and verifiable reasons" for the substitution
given by
the
political party desiring
the change or substitution.
Learned Senior Counsel for the
appellants wants this Court to pretend, in interpreting section 34(2) of the
Electoral Act, 2006, that the words
"give
cogent and verifiable reasons” for any change or substitution
do not exist under that section even though they are expressly provided.
From the facts of the case it is clear that the 3rd
respondent/appellant stated in exhibit L that the reason for seeking the
change or substitution of the 1st respondent with the appellant
is that the name of the 1st respondent was submitted in error, is
that a cogent and verifiable reason for wanting the change or substitution
as required by law particularly as there is evidence that the 1st
respondent scored the highest number of votes at the primaries i.e 2,061
votes while the substitute, the appellant scored 36 votes and was the 13th
at the said election? When confronted with this reality,
learned Senior Counsel for the 3rd respondent/appellant, Chief
Gadzama.
san stated, from the inner
Bar, that by the provisions of the Constitution of the 3rd
respondent/appellant, the 1st respondent was expected to have
achieved a particular geographic spread of votes in the election which he
failed to realize. However, when asked to show the court where that reason
was stated in the letter seeking the change or substitution in compliance
with the law as laid down by the legislature, he admitted that it was not so
stated, in any event, can it be said, that a candidate who scored 36 votes
achieved a better geographic spread than the one who scored 2,061 votes? I
do not think so. I therefore hold the view that the alleged reason given by
the 3rd respondent in exhibit L, for the substitution of the name
of the 1st respondent with the appellant being that the name of
the 1st respondent was originally submitted to the 2nd
respondent in error and the additional reason of failure of the 1st
respondent to achieve the required geographic
spread in the primary election as given by learned Senior Counsel for
the appellant from the inner Bar, granted that it was so stated in the said
exhibit L in addition to the reason of error, are in my considered opinion
not cogent and verifiable reasons as required by section 34(2) of the
Electoral Act, 2006.
This court has been urged to
hold that the word
"shall" as used in section 34(2) of the Electoral Act, 2006 is
directory and not mandatory particularly as there is no
sanction or penalty for
failure to comply. I do not agree.
Whilst it is settled law, that
the word
"shall" when used in a statute may denote permissible or directory
conduct and not mandatory, depending on the context in which it is used, I
hold the view that in the instant case, the word "shall" is mandatory as
that appears to be the intention of the legislature in enacting the whole of
section 34. That view is strengthened by the provisions subsection 3 of
section 34 to the effect that there shall be no substitution or replacement
of any candidate whatsoever after the date referred to in subsection m of
section 34 except in the case, of the death of the original candidate. That
amounts to a complete prohibition.
It is erroneous to submit that
because a law prohibiting a particular conduct fails to or does not provide
for any sanction or penalty for the breach of the prohibited conduct it is
directory not mandatory, or to put it bluntly should not be obeyed, or the
prohibited conduct should be taken as thereby permitted by the law, is
unacceptable particularly as subsection (3) of section 34 expressly provides
that any substitution that is not made in accordance with subsection 1 of
section 34 is invalid or ineffective. The sooner we learn that laws are not
made for the fun of it but for the betterment of the society if obeyed, the
better for this nation which is a nation of Constitutional democracy under
the rule of law, where the law is supreme to all and sundry.
I think the legislature
intended to bring sanity into the exercise by the political parties of their
right to change or substitute their candidates even on the eve or after an
election simply because nomination or sponsorship of a candidate for any
election is the prerogative of the political parties to which the courts
will not interfere or have no jurisdiction
to interfere. The 3rd respondent/appellant should rest
assured that the courts have no interest in who should be a candidate for
any political party but is very much duty bound to interprete the law as
made by the legislature so as to determine whether or not in the exercise of
its rights of sponsorship or nomination, the political party has complied
with the relevant provisions of the law laid out to regulate proper
conductso as to guarantee orderliness, peace and equity the judiciary to
perform its Constitutionally assigned role of interpretation of the laws
particularly as it concerns provisions made by the legislature for
nomination and sponsorship of candidates for any election by political
parties is to dabble into the internal affairs of the political parties is
nothing but cheap blackmail. The political parties should be disciplined
enough to obey the laws of the land, and their own constitutions, so as to
assure the people of their readiness to defend the constitution of this
nation if entrusted with
political power. The rule of law is here to
stay.
It is for these and the more
detailed reasons given in the lead judgment of my learned brother Tobi, JSC
that I agree that this appeal lacks merit and should be dismissed. I
accordingly dismiss same and abide by all other consequential orders
contained in the said lead judgment
including the order as to costs.
Appeal dismissed.
Reasons for Judgement delivered by
Ibrahim Tanko Muhammad,
J.S.C
On Thursday, the 5th day of April, I concurred with My Lord,
Tobi, JSC, in his Judgment wherein he dismissed this appeal. My reasons for
the dismissal of the appeal were then adjourned to today. Herein below are
my reasons:
Background facts:
Senator Ifeanyi Ararume (who was the plaintiff at the trial court) is
currently the Senator representing Okigwe Zone, Imo North Senatorial
District in the Senate of the Federal Republic of Nigeria. This was his
second time as a Senator since 1999. He is a member of the Peoples
Democratic Party (PDP). He indicated his interest to contest as a
Gubernatorial candidate for
At the party primaries, the plaintiff came first out of the 22 contestants.
He scored two thousand and sixty one (2,061) votes. Plaintiff was duly
nominated Imo State PDP candidate for the Governorship Election scheduled to
take place in April, 2007.
The 1st defendant upon receipt of the name of the plaintiff from
the 3rd defendant published the name of the plaintiff on their
notice board and went further to publish the information on a sworn
affidavit in support of the particulars of the plaintiff in all their
offices in the Local Government Areas in Imo State. The plaintiff alleged
that immediately his name was submitted by the 3rd defendant as
its candidate, the state Chairman of the 3rd defendant in
The plaintiff averred that on 16th January, 2006, the defendant
started what it called
the verification of the documents of the candidates of all the political
parties. The
verification exercise, he said, was scheduled to last for ten days (16th
-26th January, 2007). The defendant i.e. INEC will start
disqualifying candidates in a manner contrary to the Electoral Act, 2006,
which according to plaintiff, empowers only a court of law to disqualify a
duly nominated candidate of a political party. The plaintiff averred that
under the Electoral Act, 2006, the defendant has no power to screen, verify
or disqualify a candidate once the candidate's political party has done its
own screening and submitted the name of the candidate to INEC. The plaintiff
stated that he is very sure that he has not committed any offence to warrant
disqualification. He stated that if the trial court did not stop INEC before
they wrongfully change, substitute, or disqualify him, there would be
confusion if a new name was submitted by the political party and that he
would suffer irreparable and irretrievable damage if his name was wrongfully
removed and substituted with another. He averred that INEC was about
accepting the substitution of his name without any cogent or verifiable
reason. The plaintiff then took a writ of summons from the Federal High
Court,
1.
A declaration that the option of changing or substituting a candidate
whose name is already submitted to INEC by a political party is only
available to a political party and/ or the Independent National Electoral
Commission (INEC) under the Electoral Act, 2006 only when the candidate is
disqualified by a court order.
2.
A declaration that under section 32(5) of the Electoral Act, 2006 it
is only a court of law, by an order, that can
. disqualify a duly nominated candidate of
a political party whose name and particulars have been published in
accordance with section 32(3) of the Electoral Act, 2006.
3.
A declaration that under the Electoral Act, 2006, Independent
National Electoral Commission (INEC) has no power to screen/verify or
disqualify a candidate once the candidate's political party has done its own
screening and submitted the name of the plaintiff or any candidate to the
Independent National Electoral Commission (INEC).
4.
A declaration that the only way Independent National Electoral
Commission INEC can disqualify, change or substitute a duly nominated
candidate of a political party is by court order.
5.
A declaration that under section 32(5) of the Electoral Act, 2006 it
is only a court of law, after a law suit, that a candidate can be
disqualified and it is only after a candidate is disqualified, by a court
order, that the Independent National Electoral Commission (INEC) can change
or substitute a duly nominated candidate.
6.
A declaration that it is unconstitutional, illegal and unlawful for
the Defendant to change the name of the plaintiff as the Governorship
candidate of People Democratic Party (PDP) for the April, 13th
2007 Governorship Election in Imo State.
7.
A declaration that it is unconstitutional, illegal and unlawful for
the Defendant to change the name of the plaintiff as the
Governorship candidate of Peoples Democratic Party (PDP) for Imo
State in the forthcoming Governorship Election in Imo State, after the
plaintiff has been duly nominated by the Peoples Democratic Party as its
candidate and after the defendant has accepted the nomination and published
the name and particulars of the
plaintiff in accordance with section 32(3) of the Electoral
Act, 2006, until a High Court disqualifies the
plaintiff or until cogent and
verifiable reasons are given to the Defendant
by whoever
desire(sic) to
make the change.
8.
An order of perpetual injunction restraining the defendant from
changing or substituting the name of the applicant as the Imo State Peoples
Democratic Party Governorship candidate for the April, 2007 Imo State
Government Election unless or until a court order is made disqualifying the
plaintiff and or until cogent and verifiable reasons are given as required
under section 34(2) of the Electoral Act, 2006"
In its amended Statement of
Defence the 1st defendant, save where it expressly admitted any
fact, all other facts have specifically been denied. It is to be noted that
up to the 6th of February, 2007, INEC was the sole defendant in
the suit before the trial court. An order was however made by the trial
court on the 6th of February granting leave to Engr. Charles Ugwu
and PDP to join the suit as 2nd and 3rd defendants
respectively. Both the newly joined defendants filed a joint statement of
Defence on 8/2/2007. They both
denied the facts averred to by the plaintiff.
At the end of its trial, the trial court, per Binta F. Murtala Nyako,
J; made the following findings and conclusions:
"By the provision of Section 34 of the Electoral Act 2006, I find that a
political party has the power to change its nominated candidate for another
any time before 60 days to election. In its exercise of the power of change,
it needs to inform the INEC in writing not in any prescribed form of the
change. It will also give INEC cogent reason for the change which INEC
should be able to verify."
In the instant case, the 3rd Defendant submitted the name of the
Plaintiff as its Governorship candidate; informed INEC of its change of
candidate and gave INEC a reason for the change. It is left for INEC to
verify the reason or not. But pursuant to all the above, I will say that the
political party is within its power to so change its candidate and have so
done as far as the parties on record are concerned.
Consequently I hereby declare as
follows:
Relief 1 in the negative.
Reliefs 2-9 appear to have been abandoned as they were not addressed.
Reliefs 6, I answer to the effect that a reason was given and the duty of
verification lies with INEC.
Reliefs 7, I affirm only to the extent that a Court disqualification of a
candidate is at a requirement of either Section 32(3) or Section 34 of the
Electoral Act 2006 for a change of candidate.
Relief 8 fails and cannot be granted because the political party has the
power to change its candidate in compliance with laid down procedure."
Aggrieved by the trial court's
decision, the plaintiff filed his Notice and Grounds of Appeal to the Court
of appeal,
Briefs
of argument were
settled by
the plaintiff/appellant
and the 1st
defendant/respondent On the
hearing date, both the appellant, the 1st
respondent before
the court below applied to withdraw their written briefs of arguments in
preference to oral argument. The court below heard the appeal and the
cross-appeal on oral arguments by learned counsel for the respective
parties. At the end, the court below allowed the main appeal and dismissed
the cross-appeal. In allowing the appeal, Adekeye, JCA who wrote the leading
Judgment which was concurred to by Aboki and Uwa JJCA, stated as follows:
"The nomination
and sponsorship of candidates by political parties to contest elections are
considered to be an intra party or domestic dispute to be determined by the
rules and constitution of the said party. It is not for the court to
interfere with a right vested in a political party by imposing a candidate
on the party. The rationale behind the principle of law, as pronounced in
the case of Dalhatu v. Turaki 2003 15 NWLR .
pt 843
page 310 by the Supreme Court is that since persons have
freely given their consent to be bound by rules and regulations of a
political party they should be left alone to be governed by such rules and
regulations.
The court is only to be involved in the dispute as to the interpretation of
(the) section 34 so as to ensure fairness and justice in the circumstance of
any particular case.
The learned trial judge in the exercise of her discretion held:-
"In the instant case the 3rd defendant submitted the name of the
plaintiff as its governorship candidate informed INEC of its change of
candidate and gave INEC a reason for the change. It is left for INEC to
verify the
reason or not."
This is not the purport of section 34(2) of the Electoral Act, 2006. Section
34(2) demands that any application made pursuant to subsection (1) of this
section shall give cogent and verifiable reasons. The section does not
welcome any form of non-chalance on the part of INEC. The reasons given for
the substitution are supposed to be cogent and verifiable read
conjunctively. A court of law is without power to import into the meaning of
a word, clause or section of a statute something that it does not say.
Ojukwu v. Obasanjo 2004 12 NWLR pt
886 pg 169
Moreover that pronouncement is not a judicial or judicious exercise of the
discretion of the lower court in the circumstance of the
case.
I
shall not hesitate to conclude that the learned trial judge failed to
consider all the aspect of section 34(1) and (2) of the Electoral Act and
same has not met the justice of this case. I hereby allow the appeal.
Judgment of the lower court is hereby, set aside. No Order as to Costs."
While dismissing the
cross appeal the
learned Justices of the Court, below, per Adekeye, JCA; observed:
"The issue of nomination, sponsorship and substitution of candidate precedes
the election and are thereby preelection issues. The political party has
the right to change its candidate before the election in the exercise of
that right. A court of law lacks jurisdiction to adjudicate on intra-party
contest or nomination of candidate. No party member has a legal right to the
nomination. There is no corresponding obligation on the political party so
as to pave way for the powers of the court to be invoked under section 6 of
the constitution. In effect a court of law has no jurisdiction over the
issue of determination of intra-party political matters. The issue of
primaries, selection of candidates to contest an election at any given time
is the preserve of the political parties exclusively outside the province,
or competence of courts. Court shall not impose a candidate on a political
party.
Onuoha v. Okafor 1983 2 SCN LR 244
Chukwu v. Icheonwu (1999) 4 NWLR pt. 600 pg 587
Owuru v. INEC (1999) 10 NWLR pt 622 pg 21
Adebusoye v. Oduyoye (2004) 1 NWLR pt 854 pg 406
Dalhatu v.
Turaki ( 2003)15 NWLRpt 843 pg 310
Ibrahim v. Gaye (2002) 13 NWLR pt 784 pg
267
Jang v. INEC
( 2004) 12 NWLR pt 886 pg 46
Tosho v.
Yahaya (1999) 4 NWLR pt 600 pg 657
Rimi v. INEC (2005)
6 NWLR pt 920 pg 56
That
position
or stand has
now changed with the provision
of section 34(1) and (2) of the Electoral Act which has created and placed
an extra duty on INEC in its supervisory role over the affairs of political
parties. Cogent and verifiable
reasons are
weapons to
be employed by INEC when
taking a decision to substitute a
candidate. The procedure
engaged can
be challenged in court for interpretation of the section.
The learned senior counsel for the
2nd and 3rd
Respondents are of the opinion that the new section 34 is only
cosmetic in context, bare and barren devoid of any legal sanction. I do not
agree with them and I regard that impression as misconstruing, the intention
of the law makers in promulgating section 34. I however agree that the law
makers must go a step further in the framing of the provision particularly
in the area of implementation and sanction for non compliance, or once it is
established that a candidate is not disqualified under the constitution or
the Electoral Law, and if he has won in the party primaries his or her
nomination should not be subject of any substitution. Any provision for
substitution should be deleted in the Electoral Act. A Political Party must
not be allowed to approbate and reprobate. These are only suggestions. The
Cross-Appeal is dismissed. No Order as to Costs."
The 2nd respondent
in the court below and now as 1st appellant
herein, was dissatisfied with the above decision and he appealed to
this court. Leave of court was sought and granted for the 1st
appellant to amend his Notice and Grounds of Appeal by filing additional
grounds of appeal.
The 3rd respondent
in the court below and 2nd appellant herein was dissatisfied too,
with the lower court's decision and it filed its appeal.
The parties, except the 2nd
respondent herein who was the 1st respondent in the court below,
and who elected not to file any brief, filed and exchanged brief of
argument.
In his brief of argument the
learned SAN, Dr. Izinyon, formulated the following four issues:
(1)
Whether the decision of this Honourable Court in
Onuoha vs Okafor (1983) 14 NSCC
494
Dalhatu v. Turaki
(2003) 15 NWLR (PT. 843) 310
on issues of nomination and sponsorship of candidate by a political party
have been overtaken by the provisions of Section 34(1)(12) of the Electorate
Act, 2006. (Encompassing grounds 4
and 11 of the Notice of Appeal)
(2)
Whether the learned Justices of the Court of Appeal were right in
holding that Section 34 of the Electoral Act, 2006 is justiciable.
(Encompassing grounds 1 and 6 of
the Notice of Appeal)
(3)
Whether the learned Justices of the Court of Appeal were
right in the interpretation of
Section 34 (1) (2) of
the Electoral Act, 2006.
(Encompassing grounds 2,
3,
5, 6, 7, 8, 10 and 12 of the
Notice of Appeal)
(4)
Whether the learned Justices of the Court below were right in holding
that Exhibits K, L,
and L1 had no probative
value having regard to the admission by consent of the said Exhibits by
parties at the stage of the proceeding.
(Encompassing grounds 9 and 14 of
the Notice of Appeal)"
The Learned SAN for the 2nd
appellant Chief Joe-Kyari Gadzama formulated three issues. They are
as follows:-
(a)
"Whether the Court of
Appeal was right when it held that the action before the trial court being
one of sponsorship and nomination of a candidate by a political party was
justiciable i.e. has Section 34 (1) (2)
however interpreted taken
the issue
of nomination and sponsorship of a candidate outside the Supreme
court decision in:
(a)
P. C. Onuoha
vs RBK
Okafor (1983) SNLR pg
244.
(b)
Dalhatu v. Turaki (2003)
15 NWLR (PT. 843) 300(Distilled from Grounds 1 & 2 of the Notice
of Appeal)?
(b)
Whether the court below was
right or not in holding that exhibits L, Li & K had no probative value, when
the pieces of evidence above were admitted by consent of parties.
(c)
Whether the Court of Appeal
as constituted by a three
man panel instead of 5 Justices, had jurisdiction to hear and determine the
matter before it having regard to fundamental, constitutional and salient
legal issues raised in the Appeal."
The Learned SAN for the 1st
defendant, L. O. Fagbemi, formulated the following three issues for the
determination of this Court:
(1)
Whether, having regard to all relevant laws, documentary evidence
before the Court and the complaints in the grounds of appeal; it can be said
that, the Court below was wrong in reaching
a
conclusion that, there was non
compliance with section 34(2) of the Electoral Act 2006 in the purported
substitution of the name of the plaintiff with that of the 2nd
Respondent?
(2)
Whether steps taken in breach of a Court order and in
purporting to substitute the
name of the Plaintiff are not null and void?;
and
(3)
Whether the Plaintiff's case is justiciable."
Although differently worded,
the issues formulated by learned senior counsel for the respective parties
can, in my humble view, be grouped as follows: 1st appellant's
issues (a) and 1st respondent's issues 1 and 3. 1st
appellant's issue No. 4 tallies with 2nd
appellant's issue (b); 2nd appellant's
issue (c) has no match from the other issues. 1st respondent's
issue 2 has no match from the other issues and can stand on its own. Thus,
in my treatment of the appeal, 1 shall rely more on the 1st
appellant's issues and in doing so, I shall
consider issues 1 - 3 together.
Let me start with the issue of
Justiciability of an enactment in a statute but with particular reference in
this appeal to section 34 of the Electoral Act; 2006. An enactment is
justiciable if only it can be properly pursued before a Court of Law or
tribunal for a decision. But where a court or tribunal cannot enforce such
enactment then it becomes non-justiciable (i.e. non-enforceable). This means
that the Executive does, not have to comply with the enactment unless and
until the Legislature enacts specific laws for its enforcement.
In our constitutional law we have typical examples of such enactments
particularly those contained in Chapter II of the Constitution of the
Federal Republic of Nigeria 1999, placed under the caption, "Fundamental
Objectives and Directive Principles of State Policy." These are not
justiceable, generally, they run subsidiary to the Fundamental Rights
Contained in Chapter IV of the constitution. See the case of
Archbishop_Anthony Olubunmi Okojie(
Trustee of Roman Catholic School) & ors vs. Attorney general of Lagos State
(1981) 1. N. C. L R. 218.
Section 34 of the Electoral
Act, 2006 provides as follows:
"34.
(1)
A political party intending to change any of its candidates for any
election shall inform the Commission of such change in writing not later
than 60 days to the election
(2)
Any application made pursuant to subsection (1) of this section
'shall give Cogent and verifiable reasons
(3)
Except the case of death, there shall
be no substitution or replacement of any candidate whatsoever after the
date referred to in subsection (1) of this section."
(underlining
and italics supplied for emphasis)
Learned Senior counsel for the
1st appellant as well as that of the 2nd appellant,
each made strenuous submissions in their respective briefs of argument that
section 34 of the Electorate Act, 2006 (to be referred to herein below as
the "Act") is not justiciable as the Act has not clearly donated
Justiciability to the section. The section does not confer any right of
action on any person. It was further argued that by the claim and relief of
the 1st respondent, the issue is not Justiciable. Argued also is
that section 34 of the Act deals with the issue of nomination and
sponsorship of candidates arid does not confer any right whatsoever on a
substituted candidate to challenge his substitution before any authority.
The issue of nomination and sponsorship of candidates for elections had been
laid to rest by the Supreme Court in the cases of
Dalhatu v. Turaki (2003) 15 NWLR
(Pt.843) 300: Onuoha v. Okafor (1983) SNLR. 244.
Learned counsel for the 1st
respondent submitted that if a right is conferred by statute, the decision
in Onuoha v Okafor (supra) will
not be relevant and it is because of the absence of any law such as the like
of section 34(2) of the Electoral Act, 2006, that was what made the Supreme
Court to arrive at the decision in
Onuoha v Okafor (supra).
Let me start by saying that if
history has anything to teach human beings, I think the machinery of law in
a developing society is one such lesson that we must be ready to accept in
this country. The case of Onuoha v
Okafor (Supra); Dalhatu v. Turaki
and several others too numerous to mention were decided by this court on the
then prevailing laws. Certainly the duty of the court is to interpret and
not to make laws, it appears that the Legislature has found some lapses or
lacunae in the provisions of section 83(2) of the Electoral Act of 1982
under which the case of Onuoha v
Okafor (Supra) and Section 23 of the Electoral Act of 2002 under which
Dalhatu v. Turaki (supra) were
decided respectively. These
Sections in the 1982 and 2002 Electoral Acts left, the issue of substitution
of candidates entirely in the hands of the political parties without any let
or hinderance. But when the
Legislature realized that the political parties were abusing the unfettered
powers of "making" and "unmaking" of prospective candidates for the
political offices to be contested at election periods, it then decided to
re-draft the specific provisions relating to substitution of candidates for
the elective offices. Thus, I
think, is what brought about section 34 of the Electoral Act 2006.
A statute, it is always said,
is "the will of the Legislature" and any document which is presented to it
as a statute is an authentic expression of the Legislative will. The
function of the court is to interpret that document according to the intent
of those who made it.
Thus, the court declares the intention of the legislature.
The court can elicit that intention from the actual words of the
statute. Lord Greene M.R.
once observed:
"If there is one rule of Constitution for statutes and other documents, it
is that you must not imply any in them which is inconsistent with the words
expressly used."
See:
R A Debtor (No335) of 1947
(1948) 2 All E. R. 5333 at p.536
Thus, where the language of a
statute is clear and explicit, the court must give effect to it, for in that
case, the words of the statute speak the intention of the legislature. The
court must bear in mind that its function in that respect is Jus Dicere, not
Jus Dare, and the words of a statute must not be overruled by the judges,
but reform of the law must be left in the hands of the Legislature. That is
what our courts do and I do not think, as Chief Gadzama submitted, any of
the courts, ever embarked on what he called "Judicial Legislation."
The justiciability or
otherwise of section 34 of the Act can only be determined by looking at the
whole enactment on the section and applying the primary Rule of literal
construction as is applicable to statutes. That rule, of course, requires
that words, phrases in statutes must be given their natural meanings and not
to be construed contrary to their meaning as the duty of the court is to
expound the law as it stands. Where, by the use of clear and unequivocal
language capable of only one meaning, anything enacted by the legislature,
it must be enforced however harsh or absurd or contrary to common sense the
result may be. Now let me attempt applying the natural rule. Section 34 of
the Act states:
"34 (1) A political party intending to change any of its candidate for any
election shall inform the Commission of such change in writing not
later than 60 days to the election.
(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons"
For the purposes of justiciability of the above section or not, I find the
wordings therein more-compelling than the sections dealing with the subject
of substitution in the earlier Electoral Acts of 1982 and 2002. In the one
on hand, I understand the section to say:
a)
A political party has a right to nominate and sponsor any of its
members to any elective office.
b)
Such a nomination and sponsorship is valid if it is done within 60
days before the election date to that office
c)
Except where there are "Cogent and Verifiable reasons, a political
party loses the right to substitute any of its nominated members to the
Commission (i.e. I NEC) after the expiration of the 60 days stipulated in
subsection (1) to be sponsored for the said election."
d)
The information on substitution must be communicated to the
Commission in writing.
The section in my view, is more than cosmetic. It confers right on anyone
who is wrongly substituted to claim for restoration of his right. The
repeated use of the word "shall" is mandatory and not directory. It is then
the responsibility of the court to invoke the powers conferred on it by the
Constitution, i.e. section 6(6)(b) which provides:
"6(6) The
Judicial powers vested in accordance with the foregoing provisions of this
section - (b) shall extend to all matters between persons, or between
government or authority and to any person in Nigeria, and to all actions and
proceedings relating thereto, for the determination of any question as to
the Civil rights and obligations of that person." I
am of the firm view that section 34 of the Electoral Act, 2006, is
justiciable as held by the lower court. This settles 1st
appellant's issue No. 2; 2nd appellant's issue No. (a) and the
respondent's issue No. 3.
There is no doubt the primary role of nomination and sponsorship of a
candidate to contest for any election in the present democratic dispensation
is that of the political party to which a candidate belongs.
However, with the new
provision of section 34 of the Electoral Act, 2006, the whole procedure of
nomination or sponsorship of a candidate by a political party has been put
directly under supervision of the Electoral Body charged with the conduct of
election affairs body is now known as the Independent Electoral Commission,
(INEC) The practice in the previous elections was that a political party had
the liberty to a nominee for election to a particular office, not
later than 30 days to the
(l date. Section 23 of the 2002 Electoral Act provides for that:
"23. Any Political Party which wishes to change any of its candidates for
any election under this Act may signify its intention in writing to the
Commission not later than 30 days to the date of Election."
The above provision,
apparently, left the issue of nomination of candidate election to Political
offices entirely in the hands of the Political Party.
Equally a Political Party had unfettered power in exercising its
discretion at will, to change any of its candidate
for any election under the Act.
The only condition were: (a) that the
Electoral Commission had to be informed of the change and (b) that the
proposed change must be done not later than 30 days to the date of election.
Thus, no body had the power,
including INEC and the courts, toinquire into whether there were reasons for
the change and whether such reasons {if any) were acceptable reasons or not.
That was why many candidates became victims of such unwieldy
exercise of discretion by
the Political Parties. INEC was itself rendered a toothless-bull-dog and
could not salvage the situation. That was why I had to make some
observations in the case of Rimi v.
INEC & Ors (2005) 6 NWLR (pt 920)56. Although I am not stating the full
facts of that case here, which are of course fully covered in the report it
almost gave a shocker to all and sundry when one looks at the empasse that
ensued between INEC, the Political Party in question (PDP) and its
candidates. In what NTA Lokoja reported as a coverage
of the episode just some few hours to the election day (which was admitted
in evidence), the news item reported as follows;
"Reporter – in the last few weeks, the PDP candidate for
Lokoja
Constituency to the State Assembly
generated a lot of controversy. Such that it was not clear who was actually
the party's rightful contestant. Two persons
paraded themselves as the party's
candidate, namely the incumbent, as the Alhaji Hashimu Rimi and Architect
Umaru Buba Jibrin as at this morning the situation had not changed. But few
hours ago, the resident INEC Commissioner gave clarification on the matter.
"Transcription - it is interesting phenomenon. We also wondered
What
was happening over, each candidate
will come with a letter
claiming to be the rightful candidate. But now we have a substitution for
the name and Buba is the
rightful candidate. I hope it does
not change in the next five minutes.
Buba is the candidate and I will
talk to Hashimu later and tell him of the development so that he can stay
clear of the election."
That was so much of the
imbroglio seemingly created by the party in question.
I then went on to observe as follows:
“from
the totality of the above exhibits
which are clear enough to speak for themselves, there is no doubt that it
was the party (PDP) which created a bleak scenario full of cynicism,
mistrust, non-resoluteness, misdirection, complete absence of cohesiveness
and the brazen show of power and favouritism which shrowded the whole
electioneering process in
respect of Lokoja 1 State Constituency, in mystery and confusion."
Now the
case of Onuoha v. Okafor (1983) 2
SCNLR 244.
was decided in 1983. The then existing law on
Elections was the Electoral Act of 1982 which commencement date was the 5th
day of August, 1982. I feel duty bound for clarity sake, to have a look at
the facts, circumstances and the law in
Onuoha’s case so as to afford me a reasonable comprehension and
comparison with the facts of the appeal on hand; and the prevailing laws
within which it operates. The plaintiff at the High Court of Justice of
At the end of hearing by the
panel, the panel nullified the selection of the plaintiff and went on to
choose the 3rd defendant to represent the party at the
forthcoming Senatorial Election.
Dissatisfied with the decision
taken by the panel and ratified by the party, the plaintiff then went on to
court on the grounds disclosed in his writ and statement of claim. It was
the plaintiff's case that he never took part in the election after the
nullification and that the Nomination Election Petition Panel did not meet
to select a candidate. The 3rd defendant was merely joined
because he was a candidate whose interest was likely to be affected.
The trial court upheld the
claim of the plaintiff. On appeal to the then Federal Court of Appeal, that
court per: Phil-Ebosie, Aseme and Olatawura, JJCA unanimously allowed the
appeal and set aside the decision of the trial court and dismissed the
claims. There was a further appeal to the Supreme Court. The 7 man panel of
the Justices of the Supreme Court unanimously held, in a summary form, as
follows:
(1)
The expressed intention of the Constitution of the Federal Republic
of Nigeria, 1979 and the Electoral Act 1982 is to give a registered
Political Party the right freely to choose the candidate it will sponsor for
election to any elective office or seat in the legislature.
(2)
The exercise of this right is the domestic affair of the party over
which the court has no jurisdiction.
(3)
The question of the candidate a Political Party will sponsor is more
in the nature of a. Political question which the courts are not qualified to
deliberate upon and answer. Consequently, the question is not justiciable in
a court of law.
In a nutshell, the Supreme
Court dismissed the appeal and affirmed the judgment of the Federal Court of
Appeal.
In the case of
Dalhatu v. Turaki (Supra) or as
reported in (2003) 7 SCNJ I, the
facts were that at the screening exercise for selection of the candidate of
the All Nigeria Peoples Party (ANPP) the appellant at the Supreme Court, was
the only prospective member of the party who was screened. After the
screening exercise, he was declared the winner. A primary election was
subsequently conducted. In the primary election the 1st
respondent participated but the appellant did not participate. The 1st
respondent was declared the winner of the primary election. The party, that
is the 4th respondent, accorded recognition to the 1st
respondent as the Gubernatorial candidate of the
party for
In its
judgment the trial court found for the appellant and granted the declaration
and injunction sought by him.
By that judgment the selection of the 1st respondent by the party
was annulled and the party was restrained from interfering with the rights
of the plaintiff to contest the election to the office of Governor of Jigawa
State. Aggrieved by the trial court's decision, defendants appealed to the
Court of Appeal, Abuja Division. In their judgment, the 5 man panel of
Justices allowed the appeal by the respondents. The judgment of the trial
court was set aside and an order was made striking out the suit. On further
appeal to the Supreme Court by the respondent at the Court of Appeal, the
seven man panel of Justices of the Supreme Court dismissed the appeal and
affirmed the Court of Appeal's judgment. Salient among the holding of the
apex court are as follows:-
"(1) By the authority of Onuoha v. Okafor
the trial Court had no jurisdiction to entertain the matter. The issue of
who should be a candidate of a given political party at an election is
clearly a political one to be determined by the rules and constitution of
the party. In other words, it is a domestic issue and not such as would be
justiciable in a court of law. This is so because the power and the right to
nominate and sponsor a candidate to an election are vested in a political
party and the exercise of this right is the domestic affair of the party,
i.e. in this case the ANPP."
That is so much on the two
cases of Onuoha v. Okafor
(supra)
and Dalhatu v. Turaki (supra).
Given the facts, circumstances and the laws under which the two cases were
decided, I cannot fault any of the decisions. However, what is clear and
which need to be understood very well are that the two cases above were:
(1)
Constituted of different facts peculiar to each
case.
(2)
Each of the two cases was decided under a different Electoral Law/Act
(which of course shared common principles)
(3)
In each of the elections held i.e. in 1982 and in 2003, the principal
law relating to each of the elections did not places stringent conditions
which have the force of law as was done in the 2006 Electoral Act.
In the 1982 Electoral Act for
instance, there were apparently no provisions relating to substitution or
change of a candidate for the purpose of an election except by death of or
voluntary withdrawal by a candidate already nominated. I refer to sections
32 and 34
of the Electoral Act,
1982, Cap 105, LFN, 1990:
"32(4) A person nominated as
a
candidate in accordance with the
provisions of this Act may, at any time before the beginning of the period
of forty days ending with the date of the election, withdraw his
candidature by delivering in person to the electoral officer a declaration
in writing to that effect signed by him and duly attested by the signatures
of any two of his nominators.
(5)The Commission shall notify the sponsoring Political Party of the
withdrawal and the party concemed_shall be_allowed to submit another
nominee before twenty days to the election.
34(1) If a nominated candidate is reported dead
after
expiry of the time for delivery of
nomination papers but before the commencement of the poll, and satisfactory
evidence of the death of the candidate is produced to the electoral officer,
the electoral officer shall countermand the poll; and the Commission; or the
Chairman of the Commission if no quorum is available at the time shall, when
notified by the electoral officer, appoint some other convenient date for
the election.
(2)Notice of the new date fixed for the election of a candidate in
the circumstances envisaged in subsection (1) of this section shall be given
not more than thirty days from the death of the candidate whose death is the
cause of fixing the new date or not less than fifteen days from the date of
the new election.
(3)In respect of the nomination of a candidate in replacement of the dead
candidate, the provisions of sections 28 to 32 of this Act shall have
effect but within such periods of time
as
may be specified by the
Commission."
(underlining,
supplied for emphasis)
The enabling provision for the
submission of names of candidates as per the 1982 Electoral Act is section
28 thereof which provides:
"28 (1) Every registered political party shall not later than 90 days (or
such later days as may be directed by the Commission) before the date
appointed for the general elections to be
conducted
pursuant to this Act deliver
the complete list of the names and other relevant particulars of all the
candidates the party proposes to sponsor for elective offices in respect of
all the elections (or such number thereof as the party intends to
contest) to the Commission."
(underlining
supplied for emphasis)
Thus, by delivering a complete
list of the names and other relevant particulars of the nominees of a
political party, before the actual election date, the Act did not in any way
impose a limitation as to candidature of whomsoever a political party
intended to propose for any elective office. Thus, no problem was posed in
this respect and a party was free to sponsor any member of its Political
Association it found fit and proper. Now, even where two or more candidates
at an election claimed sponsorship by the same Political Party, the doubt so
created could be resolved by the Federal Electoral Commission by consulting
the leader of the Political Party concerned. The Supreme Court re-emphasized
this point when, it said:
“The
law is therefore certain as to who
is to resolve the dispute where two candidates claim sponsorship. It is the
Federal Electoral Commission by consulting the leader of the Political Party
concerned."
That was the position of the
law then. This Act was repealed by the 2002 Electoral Act. It is no longer
the existing law.
In the case of
Dalhatu v. Turaki (supra),
the law under which the case was decided was the Electoral Act of 2002.
Was there any provision for
substitution or change of a candidate? It appears there were three
circumstances under which a change or substitution of candidates for
election to Political offices could be effected by a party. These
circumstances were (a) where Political Parties could change candidates (b)
where candidates voluntarily withdraw their candidature and (c) where a
nominated candidate died.
(a)
Where a Political Party could change its candidate: the Electoral
Act, 2002 provides:-.
"23:
Any Political Party which wishes
to change any of its candidates for any election under this Act may signify
its intention in writing to the Commission not later than 30 days to the
date of Election."
It is to be noted that this
provision is a complete departure from the Electoral Act of 1982. The latter
did not make such a provision. Secondly, any of the Political Parties could
make a change or substitution of a nominee within the time limit provided by
that Act before the date of election as the party may wish or desire with
reasons for the change or for no reason at all. This is a situation where
party supremacy could operate without any let or hinderance. There is
nothing that could be an anathema to the exercise of a party's will, wishes,
desires or caprices. Yes! It is a situation also where no one could impose
any candidate however qualified or meritorious he may be on a Political
Party. It is certainly a situation where a Political Party, if care is not
taken, will try to exercise its brazen show of power, favouritism and
nepotism.
(b)
where a candidate could voluntarily
withdraw his candidature: It is provided in the same Electoral Act as
follows:
"25(1) A candidate may withdraw his candidature by notice in writing signed
by him and delivered by himself to the Political Party that nominated him
for the election, and the Political Party that nominated him for the
election, and the Political
Party shall
convey such
withdrawal to the
Commission and which shall only be allowed not later than
14 days
to the election.
(2) where a candidate withdraws as provided in
sub section(1) of this section, his Political Party shall be allowed to
nominate another candidate.
This section of the 2002
Electoral Act poses no problem as it is a voluntary decision embarked upon
by the candidate concerned. It has parallel provisions both in the 1982 and
the 2006 Electoral Act, though with minor differences.
(c)
where a Nominated Candidate died:
Section 26 of the 2002
Electoral Act provides:
"(1) if
after the time for the delivery of nomination paper and before the
commencement of the poll, a nominated candidate dies, the
Commissioner or
the Resident Electoral
Commissioner
shall being satisfied of the fact of the death, countermand
the poll in which the deceased candidate was to participate and the
Commission shall appoint some other
convenient date for the election."
This provision also poses no
problem. The 1982 Electoral Act
contained a similar provision. The 2006 Electoral Act also has similar
provision. It is a natural consequence
that the political party affected must replace the deceased candidate with
another. It is to be noted that the whole of this Act has undergone
comprehensive amendment which culminated into the emergence of the 2006
Electoral Act. Thus, the 2002 Act ceases to be the existing law as it has
been repealed by the 2006 Electoral Act. (See section 165 of the 2006
Electoral Act).
The current and existing law on election matters is the Electoral Act of
2006. Like the repealed Act of 2002, the Electoral Act of 2006 made
provisions similar to the ones provided by the 2002 repealed Electoral Act
though with fundamental difference. Let me start with the provision on death
of a nominated candidate. Section 37 of the 2006 Electoral Act (hereinafter
to be referred to simply as the "2006
Act") stipulates as follows:
"(1) If after the time for the
delivery of nomination paper and before
the commencement of the poll, a nominated candidate dies, the
Chief National Electoral Commissioner shall, being
satisfied of the fact of the death,
countermand the poll in which the
deceased candidate was to participate and the Commission shall appoint some
other convenient date for the election."
On withdrawal by a candidate, the 2006 Act States:
36(1)
A candidate may withdraw his candidature by
notice in
writing signed by him and delivered by himself to the Political
Party
that nominated him for the election
and the Political Party
shall convey such withdrawal
to the Commission and which shall only
be allowed not later than 70 days to the election
(2) Where the Commission is
satisfied that a candidate has withdrawn as provided in subsection (1)
of this section, his Political Party
shall be allowed to nominated another candidate
not later than 60 days before
the date of election.
On the circumstances where a
Political Party can change or substitute its candidate for election to a
Political office, the 2006 Act states:
"34 (1) A Political Party intending to change any of its candidates for any
election shall inform the Commission of such change in writing not
later 'than 60 days to the election.
(2) Any application made pursuant to subsection (1) of this section shall
give cogent and verifiable reasons.
(3) Except in the case of death, there shall be
no substitution or replacement
of
any candidate whatsoever after the
date referred to in subsection (1) of this section."
(all
underlining and italics shown above are for emphasis and to depict points of
similarities, dissimilarities or complete departure from the earlier
(repealed) Electoral Acts).
I shall now comment on the
last provision i.e. section 34 of the 2006 Electoral Act quoted above.
Although section 34(1) of the
2006 Act appears similar to section 23 of the repealed 2002 Act, it
fundamentally differs on the following aspects: (a) the period given within
which a Political Party can signify its intention to effect a change of
candidate for any election differs. In the 2002 Act, that intention must be
signified in writing to the Commission not later than 30 days to the
date of election. In the 2006 Act, the period for doing same is not later
than 60 days to the election, (b) the word
"may" was used as operative in section 23 of 2002 Act: The word "shall" was
used as operative in section 34(1) of the 2006 Act.
(I shall revisit the legal connotation of the words "May" and "Shall"
when used in an enactment, in course of this judgment), (c) None of the 1982
and 2002 repealed Electoral Acts had similar provisions to section 34 (2)
and (3) of the 2006 Act. These are new innovations in the 2006 Act. These
innovations in my view, have completely altered
the previous position of the law on substitution of candidate by a Political
Party as provided by the repealed 1982 and 2002 Electoral Acts. This marks a
complete departure from the two repealed Acts. The pertinent questions at
this juncture, therefore are: Why then did the
legislature find it necessary to depart from its earlier enactments? What is
the legal effect of that departure in circumstances where a Political Party
found it expedient to effect a change of candidate nominated for an
election?
I think the general
presumption is that wherever one finds an enactment being repealed by the
legislature, the message is that that piece of legislation or enactment
repealed is found to be unsatisfactory in terms of its effectiveness. It may
be two weak or excessively strong for the purpose for which it was enacted.
It therefore invites the attention of the Legislature to amend it. The
general position of the law is that where an Act or a
legislation is repealed it is regarded in the absence of any
provision to the contrary, as having never existed, except as to matters or
transactions past and closed. See:
Surtees v. Ellison (1829}_9 B & C 750,
per Lord Terteerden. Section 34 of the 2006 Act appears to be a codifying
statute. It is codifying because it purports to state exhaustively the whole
of the law upon the subject of change or substitution of a candidate
nominated for an election by his political party. The Legislature attempted,
as it is clear from the existing sections and the new subsections of ail the
sections relating to changes or substitutions of political candidates
stipulated by the various Electoral Acts to provide a solution to the brazen
exercise of power of substituting candidates by a political party for no
justifiable cause. That being the case in my view, the court has to approach
such a codifying enactment in quite a different spirit. In
Bank of
" I
think the proper course is in the
first instance to examine the language of the statute and to ask what is its
natural meaning, uninfluenced by any considerations derived from the
previous state of the law, and not to start with inquiring how the law
previously stood and then, assuming that it was probably intended to leave
it unaltered to see if the words of the enactment will bear an
interpretation in conformity with this view. If a statute intended to embody
in a code a particular branch of the law, is to be treated in this fashion,
it appears to me that its utility will be almost entirely destroyed, and the
very object with which it was enacted will be frustrated. The law is now to
be determined by interpreting the language used not (as before) by roaming
over a vast number of authorities in order to discover what the law was,
extracting it by a minute critical examination of the prior decisions."
The introduction of
subsections (2) and (3) of section 34 of the 2006 Act, could not have been
done for the mere sake of it only. There must be a purpose behind it. My
honest belief is that the Legislature must have found the provisions of the
pre-existing law far inadequate to tackle the problem of cynicism, mistrust,
non-resoluteness, misdirection, complete absence of cohesiveness, brazen
show, of power, favouritism and nepotism which usually shrowded in mystery
and confusion the whole electioneering process in a given political party..
Permit me my Lords, at the risk of repetition to quote below these two
subsections, albeit with particular reference to subsection (2):-
“34(2) An application made pursuant to subsection
(1) of this section shall give cogent and verifiable reasons.
(3) Except m the case of death, there shall be no
substitution or replacement of any candidate whatsoever after the date
referred to in subsection (1) of this section."
This is the aspect of section
34 of the 2006 Act, to my mind, which makes the said section 34 to be
justiciable. I am sure there is no conflict between what I hold as of now on
the said section in view of its new status which markedly differ with the
previous laws on the, same subject matter and what was held by this court in
the cases of Onuoha v. Okafor (supra)
that the law on substitution of candidates for election to political offices
by a political party was not justiciable. The difference, as I have set out
all the provisions above, is very clear.
Permit me My Lords, again to
examine the wordings of subsection (2) above. I shall limit my examination
primarily on the phrase, "shall give cogent and verifiable reasons."
Generally, if the word "shall"
is used in statutes, it implies imperativeness or mandatoryliness. Black
says,
“In common
and ordinary
parlance, and
in its
ordinary signification, the term "shall" is a word of command, and
one which has always or which must be given a
compulsory meaning;
as
denoting obligation."
It is my humble understanding
that the word "shall" used in the subsection, imposes a duty, on a Political
Party that makes the application to INEC for an election, to supply, as a
matter of necessity, to INEC what the Act terms "Cogent" and "Verifiable"
reasons which prompted the-application for the substitution. Where no
"Cogent" and "Verifiable" reasons are given, then INEC has no power to allow
the substitution. Thus, where a member of a Political Party feels aggrieved
because both the Political Party to which he belongs and INEC side lined
him, after having been initially and properly screened and nominated to
contest for an election but, at the nick of time, had been substituted by
another member of the party, I think he has every right to ask a court of
law to intervene and protect his right to be allowed to contest the
election. By the provisions of the Constitution of the Federal Republic of
Nigeria, 1999 every citizen of this country, subject to satisfaction of
qualifications stipulated by the Constitution for election to any of the
Political offices created by the Constitution, is entitled to contest for an
elective post as aforesaid, (see various sections of the Constitution e. g.
sections 65, 66, 106, 107, 131, 137, 142; which provide for the
qualifications and disqualifications for election into some political
offices.
The Electoral Act and Party
Constitutions must be seen to be complementing the constitution in
formulating broader rules, regulations and operation mechanisms for both
INEC and the political parties for administrative convenience. Where any of
such enactment, rules or policies comes in
conflict with any section of the Constitution, that enactment, rule or
policy must surrender to the Constitution.
Except where it is meant to
say that a member of a political party has no right at all, in election
matters, I cannot see why a political party shall be permitted, once it has
given its commitment or mandate to a candidate whom it had already nominated
whether wrongly or rightly to bulldoze its way to rescind that mandate for
no justifiable cause. Politics is not anarchy; it is not disorderliness.
it must be punctuated by justice, fairness and
orderliness.
It is unfortunate to observe
that the legislature has not assigned any specific meaning to the phrase
"Cogent and Verifiable" as used in section 34 (2) of the 2006 Act. It
appears to me to be an oversight, or a lacuna created by the
Legislature. Where such happens, the courts, though not usurping the power
of the Legislature by embarking upon "Judicial Legislation" as coined by
Gadzama SAN, must, from the necessary intendments of the Legislature, taking
the totality of the legislation under review, assign a meaning to the
missing link.
In its ordinary connotation,
the word "Cogent", according to the Lexicon Webster Dictionary, means:
"Something which has the power to convince, compel or persuade by means of a
dear, forcible presentation of facts, ideas and arguments."
If a thing is referred to as
"Verifiable", it means it is susceptible to verification. Verification is an
act of checking that thing that it is true by careful examination or
investigation. (Collins Learner's Dictionary, latest
print, 2001).
This, to me, means that the
reason(s) to be adduced by a political party to INEC before the latter can
accede to the substitution must be genuine, convincing, compelling and
persuading. It should not be flimsy or dubious. It must be clear and
unequivocal. Again, should INEC venture to confirm the veracity of these
reasons, the Political Party must be willing and ready to subject such
reasons to the scrutiny of INEC for self satisfaction.
Before looking at the
reason(s) given by the 3rd respondent in this appeal for
proposing the substitution of the appellant with the 2nd
respondent, it is pertinent to cast a glance at the processes that were
understandably initiated by the appellant, the 1st and the 3rd
respondents. There is a finding by the court below that the appellant had
effectively complied with the provisions of section 32 of the Electoral Act
and scaled the hurdle of nomination and sponsorship by his Political Party,
the PDP.
The following exhibits speak
for themselves:
1)
Exhibit D is PDP's provisional clearance certificate dated 7th
December, 2006 (7/12/06) given to the appellant
2)
Exhibit E - PDP's result of Gubernatorial Primary Election with the
appellant scoring 2061 votes to qualify him to take 1st position
while 2nd respondent who was billed to substitute the appellant
scored 36 votes making him to take 12th position (which he paired
with another contestant)
3)
Exhibit F - PDP's list of candidates for Gubernatorial Elections in
all the states with the name of the appellant for
4)
Exhibit G - INEC form for 2007 elections for Governorship in
5)
Exhibit I - Submission of names of candidates by the Political Party
2007 Governorship elections
6)
Exhibit J - Acknowledgement form by INEC dated 15th
December, 2006 Despite all these, the 3rd
respondent thereafter issued Exhibits K, L. L1 and N.
Exhibit K reads as follows:
"January 18, 2007
Prof. Maurice Iwu,
Chairman,
INEC,
Forwarding of PDP Governorship Candidate and Deputy –
Names of Imo PDP Governorship
candidate
and his Deputy in
1. Chief Charles
Chukwuemeka Ugwuh and
2. Col.
Lambert Ogbonna Iheanacho (Rtd.)
This is for your information and
necessary
action.
(Signed)
SEN. (DR.) AMADU ALI, GCON
NationalChairman
(Signed)
OJO MADUEKWE, CFR
National Secretary
Exhibit L reads as follows:
February 2, 2007
Prof. Maurice Iwu,
Chairman,
INEC,
Forwarding of PDP Governorship Candidate and Deputy -
Our letter of 1st February, 2007 refers, please.
This is to confirm PDP position that
Chief Charles Chukwuemeka Ugwuh
and Col. Lambert Ognonna
Iheanacho (rtd.) are PDP Governorship and Deputy Governorship
candidates for
Chief Charles Ugwu
substitutes Sen. Ifeanyi
Godwin Ararume
whose name was submitted in error
This is for your necessary action.
(Signed)
SEN. (DR.) AMADU ALI, GCON
National Chairman
(Signed)
OJO MADUEKWE, CFR,
National Secretary
(underlining
supplied for emphasis)."
Thus, the
reason for changing
or substituting the appellant whose name was
earlier on submitted to 1st respondent with the 2nd
respondent, was because the name of the appellant "was submitted in error."
Yes! to
err, is human. Ordinarily, an error is referred to as something done by a
person which is incorrect or which should not have been done. Thus, in the
present appeal, what the 3rd respondent was telling the whole
world is that all the processes undergone by the appellant and ratified by
the 3rd respondent were done in error! This certainly must have
been a very costly mistake or error. My difficulty here as I alluded to
earlier is the absence of definition of what is “Cogent and Verifiable.”
But, be that as it
may, "error" simpliciter, cannot be one. So in
the absence of a cogent and
verifiable reason, there is no magic wand upon which INEC will ride
to disqualify the appellant who was already accepted by it earlier as
qualified. To do so will be against reason and common sense.
Speaking for myself, I find it
terribly difficult to accept such kind of reasoning to warrant the
substitution subtly and consciously designed by the 3rd
respondent to destroy the political aspiration of the appellant, if anyone
is ready to accommodate that as a cogent and verifiable reason for the
substitution, I cannot. If I do so, I am afraid, 1 am installing crude
injustice into our electoral process.
My Lords, if we want to
instill sanity into our human affairs, if we want to entrench unpolluted
democracy in our body polity. the naked truth
must permeate through the blood, nerve and brain of each and everyone of us.
Although credit may not always have its rightful place in politics, we
should try to blend the two so as to attain a fair, just and egalitarian
society where no one is oppressed. Let us call a spade a spade! Let us not
give a dog bad name in order to hang it.
Finally, I agree with the
Learned Justices of the court below in their interpretation of section 34 of
the 2006 Act. I find their judgment in this appeal quite lucid and sound.
Accordingly, I still maintain my position in dismissing the appeal as I
stated on the 5th day of April, 2007. I concur with my learned
brother Tobi, JSC in his decision of that date and the more detailed
reasoning for the decision which he has just delivered. I abide by all the
consequential orders made including order as to costs.
Reasons for Judgement delivered by
Christopher Mitchel
Chukwuma-Eneh, J.S.C
By an amended statement of
claim filed on 12/1/2007, the plaintiff has claimed against the 1st
defendant (INEC) the following reliefs:
(1)
A declaration
that the
option of
changing or
substituting a candidate
whose name
is already submitted to
INEC by
a Political Party
is only available to a
Political Party and/or the Independent National Electoral. Commission (INEC)
under the Electoral Act 2006, only (when) the candidate is disqualified by a
court order, (sic).
(2)
A declaration that under Section 32 (5) of the Electoral Act 2006 it
Is only & court of law by an order that
can disqualify a duly nominated candidate of a political party whose name
particulars have been published in accordance with Section 32 (3) of the
Electoral Act 2006.
(3)
A declaration that under the Electoral Act 2006, Independent National
Electoral Commission (VNEC) had no power to screen, verify or disqualify a
candidate once the candidate's political party has done its own screening
and submitted the name of the Plaintiff or any candidate to the Independent
National Electoral Commission (INEC).
(4)
A declaration that the only way Independent National Electoral
Commission (INEC) can disqualify, change or substitute a duly nominated
candidate of a political party is by Court Order,
(5)
A declaration that under Section 32 (5) of the Electoral Act 2006, it
is only a court of law, after a law suit that a candidate can be
disqualified and it is only after a candidate is disqualified by a court
order that the Independent National Electoral Commission (INEC) can change
or substitute a duly nominated candidate.
(6)
A declaration that there are no cogent and verifiable reasons for the
Defendant to change or entertain the change of the name of the Plaintiff as
the candidate of the Peoples Democratic 'arty (PDP) for the April 14th
2007 Governorship Election in
(7)
A declaration that it is unconstitutional, illegal and unlawful for
the Defendant to change the name of the
Plaintiff as the
Governorship
candidate of Peoples Democratic Party (PDP) for Imo State in the forthcoming
Governorship Election in Imo State after the Plaintiff has been duly
nominated by the Peoples Democratic party (PDF) as its candidate and
after the
Defendant
has accepted
the nomination and published the name and particulars of the
Plaintiff in accordance with Section 32 (3) of the
Electoral Act
2006 until
the High Court
disqualifies the
plaintiff or
until, cogent and
verifiable reasons are given to the Defendant by whosoever desires to make
the chance.
(8)
An order of perpetual injunction restraining the Defendant from
changing or substituting the name of the Appellant as the Imo State Peoples
Democratic Party Governorship Candidate for the April 2007 Imo State
Government Election unless or until a court order is made disqualifying the
Plaintiff and or until cogent and verifiable reasons are given as required
under Section34 (2) of the Electoral Act. See pages 115 - 145 of the record.
The 2nd defendant
i.e. Engr. Charles Ugwu upon his application for joinder was joined as a
party. The 1st defendant by an, application applied to join the 3rd
defendant (i.e. PDP) and it was so joined. Both the 2nd
and 3rd defendants have filed, through their
counsel a statement of Defence. As time had become of the essence in this
matter, the trial judge advised counsel to narrow down the issues in
controversy between the parties in the matter and proffer their addresses
accordingly. After the addresses by all the parties, the trial court in a
considered judgment, dismissed the plaintiffs
claim in its entirety.
Aggrieved by the decision the
plaintiff appealed to the Court of Appeal Abuja Judicial Decision which
court, after hearing the appeal on 20/03/2007 allowed the appeal. Aggrieved
by the decision of the Court of Appeal (Court below) the 2nd and
3rd defendants (appellants) have each appealed to this Court;
that is Engr. Charles Ugwu and the People Democratic Party (PDP).
Parties have filed and
exchanged their briefs of argument. The 1st
appellant i.-e. Egnr. Charles Ugwu filed
his brief of argument on 3/4/2007. He has therein identified the following
issues for determination.
"1
Whether the decisions of this Honourable Court in
Onuoha vs Okafor
(1983)
14 NSCC
494
and
Dalhatu vs
Turaki(2003) 15 NWLR (pt. 843) 310
on issues of nomination and sponsorship of candidates by a political party
have been overtaken by the
provision of section 34 (1)(2) of the Electoral Act, 2006 (Encompassing
grounds 4 and 11 of the Notice of Appeal).
2.
Whether the learned justices of the Court of Appeal were right in
holding that section 34 of the Electoral Act, 2006 is justifiable.
(Encompassing grounds 1 and 6 of the Notice of Appeal).
3.
Whether the learned justices
of the Court of Appeal were right in the interpretation of section 34(1)(2)
of the Electoral Act, 2006. (Encompassing grounds 2, 3, 5, 6, 7, 8, 10 and
12 of the Notice of Appeal)
4.
Whether the learned Justice of the court below were right in holding
that Exhibits K.L. and L1 had no probative value having regard to the
admission by consent of the said Exhibits by parties at the
stage
of the proceeding. (Encompassing
grounds 9 and 14 of the
Notice of Appeal)."
The 2nd appellant,
the Peoples Democratic Party filed its brief of argument on 4/4//2007 and it
was deemed so filed on 5/4/2007.
In it, the following issues
for determination have been raised:
(a)
whether the court of Appeal was right when it held that the action
before the trial court being one
of
sponsorship and
nomination
of a candidate by a
political party was justiciable i.e. has section 34 (1)(2) however
interpreted taken the
issue of nomination and sponsorship
of a candidate outside the Supreme Court decision in:
(a)
P.C. Onuoha vs RBK Okafor
(1983) SNLR PG 244.
(b)
Dalhatu vs
Turaki(2003)15 NWLR,
pg 843 pg 300
(Distilled from Grounds 1 & 2 of the Notice of Appeal)
(b)
Whether the court below was right or not in holding that exhibits
L.Li & K had no probative value, when the pieces of evidence above
were
admitted by consent of parties.
(c)
Whether the Court of Appeal
as constituted by a three man panel instead of 5 Justice, had jurisdiction
to hear and determine the matter before it having regard to fundamental,
constitutional and salient legal issues raised in the Appeal,"
The 1st respondent
filed a brief of argument on 4/4/2007 and has herein raised the following
issues for determination:
"(1)
Whether, having regard to all relevant laws, documentary evidence before the
court and the complaint in the grounds of appeal, it can be said that, the
court below was wrong in reaching a conclusion that, there was non
compliance with section 34(2) of the Electoral Act 2006 in the purported
substitution of the name of the plaintiff with that if the end
(sic)
Respondent?
(2)
Whether steps taken in breach of a court order and in purporting to
substitute the name of plaintiff are not null and void? And
(3)
Whether the
plaintiffs case is justiciable,"
I adopt the comprehensive
statement of facts in this matter and
the argument by
the parties
on
the issues
raised for
determination as aptly set forth in the lead judgment of Tobi, JSC. It is
therefore for purposes of emphasis that I have all the same replicated the
following facts of the matter. The facts for purposes of this resume, as
told by the two lower courts have come to this: The plaintiffs name was
submitted to the 1st defendant by letter Exhibit F dated
14/12/2006 as the Gubernatorial candidate of the
3ul defendant, that is, the Imo State Governorship Candidate of
the PDP. Later, on -16/1/2007
by another letter, Exhibit K,
the 3rd defendant sent the name of the 2nd
Defendant to the 1st defendant as the Gubernatorial Candidate
for the
same
I should say at this stage
that I have had the advantage of a preview of the lead judgment of my
learned brother Tobi JSC. He has treated every department of this matter
very satisfactorily. This short contribution is simply to underscore the
importance of Section 34 of the Electoral Act 2006 to this matter, for this
purpose. I set forth the provision as follows: -
"1
A political party intending to change any of its candidates for any
election shall inform the commission of such change in unfailingly not later
than 60 days to the election.
2.
Any application made pursuant to subsection (1) of this section shall
give cogent and verifiable reasons
3.
Except in the case of death, there shall
be no substitution or replacement of any candidate whatsoever after the date
referred to in subsection (1) of this section."
Let me state peremptorily that
as a general principle, the rules for the construction
of statutes are very, like those which .apply to the construction of
other documents. This is more so as regards the important point here that
the words of an enactment, as in the piece of legislation above, must be
constructed as a whole so as to give a sensible meaning to them.
In other words, words in a
statute ought to be construed "ut reg magis valeat quam pereat”
This rule of interpretation synchronises with another
established principle of interpretation to the effect that a statute must be
read together as a whole and construed together in order to get to the true
meaning of the statute and the intention of the law maker in enacting it.
Hence, in this regard words of a statute have to be construed as bearing
their natural or ordinary meaning and where, in the process, there is no
ambiguity or resulting absurdity, there will be no need applying any of the
other rules of interpretation. These are settled principles of
the law
of interpretation. See:
Adah v.
N.Y.S.C.
(2001) 1
NWLR (pt 963) 65 at 78-80; Mersey Docks and Harbour Board v. Turner (1893)
AC 468 at 477; Tukur v. Govt
of
I should start to examine the
trial courts stand point in regard to construing the provision of Section 34
of the Electoral Act. The trial court at p. 572 lines 4-5 stated in that
regard thus:-
“We must give legislation their "natural meaning" In this page it has
proceeded to hold that:
“By section.
34(2) the application for the
change
made by virtue of subsection
(1) shall give cogent and
verifiable reasons"
Having rightly, set out the
foregoing as the first principles in construing the provision it has
proceeded to concluded thus:
“In this instant case, the
3rd
Defendant submitted the name of the
plaintiff change of
candidate and gave INEC is reason for
the change. It is left for
INEC to verify the reason or
not. But pursuant to all the above,
I must say that the political party is
within its power
to so change its candidate and have
so done as far as the parties on record are
concerned"
Following from the foregoing,
the court below on its part, convinced that the trial court has derailed
has, in setting aside the decision of the trial court for want of adequate
consideration of the question, held as follows:-
"...I shall not hesitate to conclude that the learned trial judge failed to
consider all the
aspects of Section 34(1)
and (2) of
the Electoral Act and same has not
met the justices of this case...."
In constructing the said
provision, it (the court below) held thus:
“The combined reading of the words application cogent and verifiable reasons
connote
an element of good
faith shown by the party
substantiated on oath or affidavit. INEC
must be able to ascertain the truth
of the facts deposed to form the surrounding circumstances of the case based
on the document at is disposal. If this court accepts that the name of the
appellant was submitted in error as a cogent
reason what about the aspect of
verification which is the ascertainment of the truth of the matter. This is
a power which INEC must
exercising taking into consideration
the surrounding
circumstances of the case,
particularly Exhibit D, E, F and the constitution of the party."
The court below has, in my
view,
rightly approached this matter perspcctively and has gone on to
demonstrate so in the above abstract.
Reading the provision of
Section 34 as whole in the context of the Electoral Act 2006, I have no
doubt in my mind of its mandatory nature.
See
Ogidi v.
The
State (2005)5 NWLR (pt
910)286 at 327, Nwoyi V
Anyichie (2005) 2 NWLR (pt
910) 623 at 649. Not least in strengthening my conclusion
here is the use of the word "shall” in the provision. The word "shall" as
used in section 34(1) and (2) of the Electoral Act denotes the mandatory
nature of the provision and that it has to be strictly complied with. The
words of
the section
do not admit
of any substantial compliance with the stipulations as provided
therein and so the word "shall” in the provision of Section 34(1) and (2)
cannot be directory. There is nothing in the tenor of the provision for that
construction. And so the court
below rightly confirmed it. The provision of Section 34 of the Electoral Act
2006 is plain and unambiguous and has to be given its natural or ordinary
meaning. Construing the words of the said provision by giving the words
their natural or ordinary meaning, it is clear that a political party
desirous to change or substitute its candidate for the
election, has to do so not later than 60 days to the election. In
this regard, the political party must do so by applying in writing to the
Commission (INEC) and in the application, it shall give "cogent and
verifiable reasons" for a change or substitution of its candidate. The words
"cogent and verifiable as used in the context of the provision of Section 34
(2) have, as it were, set the cat among the pigeons in that they have
generated so much heat and divisive argument. All the same, Section 34 is
still amenable to literary interpretation.
Let me here firstly explore
the dictionary meaning of the important words used in the said Section and
they are "cogent and verifiable". As an aside these are innovative accretion
to Section 22 of the Electoral Act 2002. Before now the words have not been
the subject of any construction in any legal sense. The Longman Dictionary
of Contemporary English, New Edition has defined the word "cogent" an
adjective as "something such as an argument that is cogent is reasonable, so
that people are persuaded that it is correct”; “verifiable,
an
adjective is derived from the verb verify the same dictionary has
defined the word verify thus: "to find out if a fact, statement etc is
correct or True, check, (2) to state that something is true; confirm”.
So that for a reason to be cogent and verifiable - it
has to be reasonable and persuading and confirmable as to its correctness.
Before delving into a serious
appraisal of this matter perspectively, if I may recap; in this matter, the
3rd defendant forwarded to the Commission (INEC) the plaintiffs
name alongside other successful governorship candidate at the primaries as
the Gubernatorial Candidate for
I have read the provision of
Section 34 of the Electoral Act 2006 several times over and it is plain and
unambiguous and it is my respectful view that the words "cogent" and
"verifiable" used in Section 34 (2) of the Act read conjunctively in the
context of the whole statute have placed a duty on a political party seeking
to change or substitute its candidate in the Election. In any circumstances
of any matter it has to do so by way of application (i.e. to apply in
writing which shows the seriousness attached to the exercise as it is not
being treated as a trifle) not later than 60 days to the election. In this
wise, the political party must give full and sufficient as well
as
intelligible reasons showing that the reasons for the change or
substitution is reasonable, persuading and confirmable
as against the
background of the
substantive circumstances which are in issue in the matter; in other
words as evident from the materials from which to determine the cogency of
the reasons. On the part of the Commission (INEC) itself, Section
34 (2) has given the Commission a corresponding
obligation of verifying the reasons given
for the change or substitution with a view to confirming their correctness.
From the mandatory nature of the provision, this is not a responsibility the
Commission can shirk or treat with levity as it ranks equal with the other
duties and responsibilities given to the Commission under the Act. Hence as
rightly held by the court below it is justiciable.
As can be seen, construing the
words of the provision of Section 34 of the Act in their natural or ordinary
meaning does not lead to any ambiguity or absurdity and it has
satisfactorily, in my view, resolved the questions arising from construing
Section 34 of the Electoral Act 2006. So that it serves no useful purpose
examining the other rules of interpretation.
The real question is whether
the 3rd Defendant has satisfied the stipulation in Section 34 of
the Electoral Act 2006, I think not. Going by what has transpired here as I
have, for ease of reference tried to recount herein, the 3rd
Defendant has not complied with the letter and spirit of the provision of
Section 34 (2) of the Act which requires it to furnish INEC with cogent and
verifiable reasons for a change or substitution of it's candidate, in this
case of the plaintiff, its candidate for the 2nd Defendant. To
simply say that it was done in error is no reason at all as the nature and
circumstances of the error have not been expatiated upon. The application is
a non-starter and must fail. Surely, it cannot be said that it is an ERROR
in this instance to substitute the 2nd Defendant who scored 36
votes at the primaries for the plaintiff who scored 2,061 votes. There can
be no doubt that there is more to it here than meets the eye. And so, this
reason is not reasonable or persuading nor confirmable
as to
its
correctness from
the
surrounding circumstances.
In so far the 3rd
Defendant has not complied strictly with the stipulation in Section 34(2) of
the Electoral Act 2006 the change or substitution of the Plaintiff is
therefore of no effect.
The next crucial question is
on the propriety of the court exercising its jurisdiction in this matter.
The 2nd and 3rd Defendants have submitted that the
court cannot adjudicate on the right of a political party in regard to the
choice of its candidates, a matter within the domestic right of a political
party. This position no doubt is premised on the position of the law before
Section 34 of the Electoral Act 2006 was enacted. In fact the submission are
rested on the decisions of Onuoha v Okafor (1983) 14 NSCC 499 and Dalhatu
v Turaki (2003) 15 NWLR (pt 843) 310. It is my considered view that
Section 34 of the Electoral Act 2006 is a unique enactment in the sense of
imposing a duty both on political parties and the Commission in regard to
the question of substituting candidates under Section 34 (2) (supra) which
duty, in my view, the court rightly has to see that it is carried out
according to the letters of the provision of the Act just as other duties
given to INEC to perform under the Electoral Act 2006. The cases of
Okafor and Onuoha are still good
law.
For the above reasoning and
conclusions and much fuller reasoning and conclusions reached in the lead
judgment of my learned Tobi JSC, I agree entirely that this appeal lacks
merit and should be dismissed. I dismiss it in its entirety and endorse all
the orders contained in the lead judgment.
Counsel
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