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In The Supreme Court of Nigeria
On Friday, the 18th day of
January 2008
Before Their Lordships
S.C. 252/2007
Between
And
Reasons for Judgement of the Court
Given by
George Adesola
Oguntade. J.S.C.
On 25-10-2007, this Court
heard this appeal and the two cross-appeals. I allowed the appeal and
dismissed the cross-appeals. I indicated then that I would give the reasons
for my judgment today 18-03 -2008.
I now do so.
On 26-01-2007, the appellant
Rt. Hon. Chibuike Amaechi, as the plaintiff, commenced his suit at the
Federal High Court, Abuja against the Independent National Electoral
Commission (INEC) (now 1st Respondent) as the defendant. Later
the appellant sought and was granted leave to join, as second and third
defendants respectively, Celestine Omehia (now 2nd Respondent)
and Peoples Democratic Party (now 3rd Respondent). I intend
hereafter to refer to the plaintiff/appellant as Amaechi and the 1st,
2nd and 3rd defendants/respondents as I.N.E.C., Omehia
and PDP respectively.
In his further amended
statement of claim, Amaechi claimed against the respondents the following
reliefs:
"i.
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 if the candidate is
disqualified by a Court Order.
ii.
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.
iii.
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).
iv.
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.
v.
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 disqualify (sic) and it is only
after a candidate is disqualify (sic) by a Court order, that the Independent
National Electoral Commission (INEC) can change or substitute a duly
nominate candidate.
vi.
A declaration that there are no cogent and verifiable reasons for the
Defendant to change the name of the Plaintiff with that of the 2nd
defendant candidate of the People's Democratic Party (PDP) for the April,
13, 2007 Governorship Election in river State.
vii.
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 of Peoples Democratic Party (PDP) for River State in the
forthcoming Governorship Election in rivers State, after the Plaintiff has
been duly nominated and sponsored by the People's Democratic Party as its
candidate and after the 1st Defendant has accepted the nomination
and sponsorship of the Plaintiff and 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
viii.
An order of perpetual injunction restraining the defendants jointly
and severally by themselves, their agents, privies or assigns from changing
or substituting the name of the plaintiff as the River State Peoples
Democratic Party governorship candidate for the April, 2007 River State
Governorship 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 the said Further Amended
Statement of Claim, the facts pleaded by Amaechi in support of his claims
would appear to be simple and straightforward. The facts may be summarized
thus:
Amaechi, as a member of PDP,
in his quest to be the Governorship candidate of the party, in the April,
2007 elections in
INEC filed its Statement of
Defence. The cornerstone of the defence is as shown in paragraphs 3, 7 and
11 thereof which read:
"3.
In answer to Paragraph 14 of the Statement of Claim the 1st
Defendant states that the Plaintiffs Political party (the 3rd
Defendant) in exercise of its right of choice of candidate has substituted
him with Celestine Omehia and Engr. Tele Ikuru as Governorship and Deputy
Governorship candidates respectively. Exhibit A.
.....................................................................
7.
Further to Paragraph 18, the 1st Defendant states that the
indictment of the Plaintiff by the EFCC and the acceptance of the report by
the Panel set up by the Federal Government provides
cogent and verifiable reasons for the Plaintiffs substitution by his
Political party.
.....................................................................
11.
The 1st Defendant states that Parties have a right to
change or substitute their candidates up to 60 days before the elections and
that the substitution of the Plaintiff was done within the time frame for
substitution, that is, on or before 13th February, 2007."
Omehia's defence was anchored
on paragraphs 3(i), (3(iv), 3(v), 4(ii), 4(iii), 5(i) and 5(iii) of its
Statement of Defence which read:
"3(i)
the Plaintiff is not a candidate of the Peoples Democratic Party
(P.D.P.) for the gubernatorial election for
.....................................................................
3(iv)
the name of the Plaintiff was included in the list of candidates of
the 3rd Defendant for gubernatorial elections in error and
submitted to the 1st Defendant. It was this error which was
corrected by the 3rd Defendant by its letter dated 2nd
February 2007 which letter and back up documents the Plaintiff has annexed
to his Amended Statement of Claim as Annexure E.
3(v)
by the Plaintiff Annexure 'E', the Plaintiffs name erroneously
entered on the 3rd Defendants List of Gubernatorial candidates
was removed and substituted with the name of the 2nd Defendant.
.....................................................................
4(ii)
the Plaintiff has been successfully and fully substituted with the 2nd
Defendant on the 2nd day of February 2007 before the Plaintiff
sought and obtained an order of this Honourable Court on the 13th
day of February joining the 2nd and 3rd Defendants in
this case.
4(iii)
the Plaintiffs name was duly substituted with the name of the 2nd
Defendant within the time allowed by the Electoral Act 2006.
5(i)
sponsorship of any member of a political party for the purpose of
contesting election into a public office is not a guaranteed right of any
member sand that the Plaintiff has no statutory or constitutional right to
be sponsored by the 3rd Defendant as its gubernatorial candidate.
.....................................................................
5(iii)
that the decision of the 1st Defendant as it relates to
accepting as cogent and verifiable the reason given by a political party for
substituting its candidate is not open to judicial review or liable to
reversal by the court."
The defence of PDP was hinged
mainly on paragraphs 3, 4, 7 and 8 of its Statement of Defence which read:
"3.
In answer to paragraph 10 of the Statement of Claim, the 3rd
defendant avers that the Plaintiffs name was substituted for the 2nd
Defendant vide 3rd defendant's letter of 2nd
February, 2007 under the hand of the National Chairman and
National Secretary of the 3rd defendant. A copy of the said
letter addressed to the 1st defendant shall be founded upon at
the hearing of the substantive suit.
4.
Paragraph 11, 12, 13 and 14 are hereby denied. With specific
reference to paragraph 14 of the Statement of Claim, the 3rd
defendant states that plaintiffs name and that of his running mate have been
substituted for the 2nd defendant, who is the 3rd
defendant's candidate for the Rivers State Governorship election in April,
2007.
.....................................................................
7.
3rd defendant admits paragraph 27 of the Amended Statement
of Claim to the extent only that the Plaintiffs name has been substituted
but deny the assertion that there are no cogent and verifiable reasons for
the substitution.
8.
Paragraph 30 of the Amended Statement of Claim is hereby denied and
in response to the averments contained therein, the 3rd Defendant
states that it has the right to change or substitute the name of its
candidate submitted to 1st Defendant provided same is done 60
days before the period of election."
Amaechi filed replies to the
Statements of Defence filed by INEC, Omehia and PDP. The said replies, in
their substance only re-asserted the facts pleaded by Amaechi in his Further
Amended Statement of Claim earlier discussed.
The case was heard by Nyako J
of the Federal High Court on this state of pleadings. Before I proceed
further, it is helpful to identify the issues arising for determination
before the trial Judge. At the conclusion of pleadings, there was no dispute
whatsoever as to the following facts:
(1)
That Amaechi contested and won the PDP's Primaries for the
Governorship Elections in
(2)
That Omehia never took part in such Party Primaries.
(3)
That Amaechi's name was first forwarded by PDP to INEC.
(4)
That Omehia's name was later substituted for Amaechi's vide a letter
sent to INEC by PDP on 2/02/2007.
(5)
That the reason given by PDP for the substitution was 'error'.
The solitary issue of fact to
be decided on the evidence was:
Whether or not Amaechi was
indicted by E.F.C.C. as pleaded by INEC in paragraph 7 of its Statement of
Defence reproduced above.
And finally, there was the
issue of law as to whether the reason 'error' given by PDF for the
substitution of Omehia for Amaechi satisfied the requirement of law under
section 34(2) of the Electoral Act,
2006.
In her judgment on 15-3-07,
Nyako J. came to two main conclusions namely:
1.
That the reason given by PDF for substituting Omehia for Amaechi
satisfied the requirements of the Electoral Act, 2006.
2.
That the letter written by PDF to INEC on 2/02/2007, at a time
Amaechi's suit was subjudice was improper. The letter was set aside.
Dissatisfied, Amaechi brought
an appeal against the judgment of Nyako J, before the Court of Appeal,
Some occurrences which I
consider important took place during the pendency of the appeal and
cross-appeals mentioned above before the court below. These
occurrences, have important bearing on this case.
I set them out hereunder. I should discuss them later for their effect:
PDP also conducted its
Primaries for its Governorship candidate of
And finally, there was the
issue of law as to whether the reason 'error' given by PDP for the
substitution of Omehia for Amaechi satisfied the requirement of law under
section 34(2) of the Electoral Act,
2006.
In her judgment on 15-3-07,
Nyako J. came to two main conclusions namely:
1.
That the reason given by PDP for substituting Omehia for Amaechi
satisfied the requirements of the Electoral Act, 2006.
2.
That the letter written by PDP to INEC on 2/02/2007, at a time
Amaechi's suit was subjudice was improper. The letter was set aside.
Dissatisfied, Amaechi brought
an appeal against the judgment of Nyako J, before the Court of Appeal,
Some occurrences which I
consider important took place during the pendency of the appeal and
cross-appeals mentioned above before the court below. These
occurrences, have important bearing on this case.
I set them out hereunder. I should discuss them later for their effect:
PDP also conducted its
Primaries for its Governorship candidate of
The court below, in its
judgment in the Araraume case on 5-4-2007 held that the reason 'error' did
not satisfy the requirements of Section 34 of the Electoral Act, 2006. The
respondents before the court below in the Araraume case brought an appeal
before this court. It is noteworthy that the parties and the court below
were ad idem on the view that the decision by this Court in the
Araraume case would be accepted by them in the Amaechi case. At page 373 of
the record, Adekeye J.C.A. (presiding) stated in her record thus:
"Court:
It is the decision of this court and going by the doctrine of
stare decisis -judicial precedent that wet waist (sic) for the judgment
of the Supreme Court on Section 34 of the Electoral Act — since that
decision shall be law and applicability shall be binding on the parties '
particularly political parties (and) INEC. This Court shall also base other
decision on any appeal involving section 34 on the decision of the Supreme
Court. This appeal shall be adjourned to the 11th of April 2007."
Now, on 5/4/07, this Court
affirmed the judgment of the Court of Appeal in the Araraume case. We came
to the conclusion that the reason 'error' did not satisfy' the requirements
of Section 34(2) of the Electoral Act;
and that Araraume remained the candidate of the P.D.P. for the April 14 Imo
State Governorship elections. In reaction to the judgment, the P.D.P., on
10-4-07, expelled both Araraume and Amaechi from the party. When later,
Amaechi's appeal came before the court below for hearing on 11/04/2007,
P.D.P. and I.N.E.C. asked that the appeal be struck out on the ground that
the court below no longer had the jurisdiction to hear the appeal, as a
result of the expulsion of Amaechi from the P.D.P. The court below granted
the prayers of I.N.E.C. and P.D.P. It struck out the appeal filed by Amaechi.
Amaechi was dissatisfied with
the ruling of the court below which struck out his appeal. The full panel of
this Court on 11/5/07 heard the appeal. In a short but expressive judgment,
this court, per Katsina-Alu, J.S.C. who presided said:
"Having heard all the
arguments of learned counsel on all sides,
I hold that the court of
Appeal was in error in declining jurisdiction to hear the appeal and
cross-appeal on the merit.
It is now ordered that the matter be remitted to the Court of Appeal,
(Italics
mine)
On 21-05-2007, Omehia brought
an application before the court below couched in these words:
"1.
An order of this Honourable Court staying further proceedings in this
appeal (just remitted for hearing by order of the Superme Court dated the 11th
of May 2007) pending the delivery of the full judgment which will provide
the basis of the determination of the appeal by way of reasons for the
judgment (as was announced by Hon. Mr. Justice A. I. Katsina-Alu (presiding)
in open court).
Alternatively
2.
An order of this Honourable Court staying further proceedings in this
appeal, particularly the hearing of the appeal until the Supreme Court is
approached by any of the parties to apply the provisions of Order 8 Rule 16
to the effect that the pronouncement of Katsina-Alu, J.S.C. made in open
court that reasons for the judgment will be provided at a later date, which
pronouncement was not reflected in the certified copy of the proceedings of
11th of May 2007 be reflected in the said judgment."
The court below heard Omehia's
application which, at the hearing was supported by both INEC and P.D.P. On
21-05-2007 when the said application was filed, the Governorship elections
for
''1.
The proceedings in this appeal, particularly the hearing of the
appeal is hereby stayed until the Supreme Court is approached by the
respondent/applicant to apply the provisions of Order 8 rule 16 to correct
clerical error (if any) in her judgment to the effect that the
pronouncement made in open court that reasons for the judgment will be
provided at a later date which pronouncement was not reflected in the
certified copy of proceedings of 11th of May 2007 be reflected in
the said judgment.
2.
The respondent/applicant is ordered to file his application at the
Supreme Court within seven days from today."
It should not escape attention
here that the 7 days allowed to Omehia on 25-5-2007 by the Court below would
in effect ensure that he would have been sworn in as Governor of Rivers
State on 29-05-2007 before the said application was brought.
Once again Amaechi was driven
into bringing yet another appeal before this Court against the order of the
court below which on 25-05-2007 stayed i, proceedings in his appeal. This
Court needed to make a repeat order on 10-07-2007 that the appeal be heard
expeditiously by the court below. The court below finally heard the appeal
on 16-07-2005. This was after Omehia had been sworn in as Rivers State
Governor on 29-05-2007.
It is desirable for clarity
that I set out sequentially the events which stalled the hearing of the
appeal filed by Amaechi before the 14th April Governorship
elections in
1.
The court below had on 4-04-2007 stated that in the consideration of
Amaechi's appeal it would be bound by the judgment of this Court in the
Ararume appeal.
2.
This court on 5-04-2007 affirmed the judgment of the Court of Appeal
to the effect that the reason 'error' did not satisfy the requirements of
Section 34(2) of the Electoral Act,
2006 for the substitution of one candidate with another.
3.
On 5-04-2007 when this Court gave its
judgment in the Araraurne case, the elections ere still nine days away.
4.
The P.D.P. on 10-04-2007 published a notice expelling both Araraume
and Amaechi from the party in reaction to the judgment given by this Court
on 5-04-2007.
5.
Omehia and P.D.P. on 11-04-2007, three days to the election brought
an application that Amaechi's appeal be struck out following his expulsion
from the party.
6.
On 16-04-2007, two days after the Governorship election, the court
below struck put Amaechi's appeal.
7.
On 11-5-2007, this Court in its judgment on Amaechi's appeal against
the order of the Court below which struck out his appeal ordered that the
said appeal be heard expeditiously.
It is desirable for clarity
that I set out sequentially the events which stalled the hearing of the
appeal filed by Amaechi before the 14th April Governorship
elections in
1.
The court below had on 4-04-2007 stated that in the consideration of
Amaechi's appeal it would be bound by the judgment of this Court in the
Ararume appeal.
2.
This court on 5-04-2007 affirmed the judgment of the Court of Appeal
to the effect that the reason 'error' did not satisfy the requirements of
Section 34(2) of the Electoral Act,
2006 for the substitution of one candidate with another.
3.
On 5-04-2007 when this Court gave its
judgment in the Araraume case, the elections ere still nine days away.
4.
The P.D.P. on 10-04-2007 published a notice expelling both Araraume
and Amaechi from the party in reaction to the judgment given by this Court
on 5-04-2007.
5.
Omehia and P.D.P. on 11-04-2007, three days to the election brought
an application that Amaechi's appeal be struck out following his expulsion
from the party.
6.
On 16-04-2007, two days after the Governorship election, the court
below struck put Amaechi's appeal.
7.
On 11-5-2007, this Court in its judgment on Amaechi's appeal against
the order of the Court below which struck out his appeal ordered that the
said appeal be heard expeditiously.
8.
On 21-05-2007, Omehia brought an application that the hearing of
Amaechi's appeal be stayed until this Court made further clarification of
its judgment given on 11-05-2007.
9.
On 25-05-07, four days to the swearing-in of Omehia as Governor of
Rivers State, the court below made an order staying proceedings in the
appeal of Arnaechi before it and granted Omehia seven days to bring before
this Court an application for the clarification of the judgment given by
this Court on 11-05-2007.
10.
On 10-07-2007, this Court re-affirmed the order it had previously
made on 11-05-2007 that the appeal by Amaechi and the cross-appeals by P.D.P
and Omehia be heard on the merit.
11.
On 16-07-2007 the court below finally heard Amaechi's appeal.
The judgment of the court
below against which Amaechi brought this appeal was given on 20-07-2007. In
the said judgment, the court below reached the following conclusions:
1.
That the facts in the Amaechi's case were distinguishable from those
in the Araraume case arising from the fact of Amaechi's indictment as
pleaded by 1NEC in paragraph 7 of its Statement of Defence.
2.
That Amaechi's name was properly substituted with that of Omehia.
That the
cross-appeal was partially meritorious.
Dissatisfied with the judgment
of the court below, Amaechi has brought a final appeal before this court.
Omehia and P.D.P. also filed cross-appeals.
The issues formulated for
determination in Amaechi's appeal are these:
"(1)
Whether the Court of appeal was not in
error in allowing fresh evidence on appeal when no exceptional circumstance
was shown to warrant such admission?
(2)
Whether having regard to the undertaking before the court, the court
below ought not to have followed the decision of the Supreme Court in
Ugwu v. Ararume
(supra)?
(3)
Whether there exists cogent and verifiable reason to warrant the
substitution of Plaintiff s name with that of any other person in breach of
Section 34 of the Electoral Act, 2006
and if not whether the .
r purported
substitution of Plaintiff s name is not null and void?
(4)
Whether I.N.E.C. (1st
respondent) can rely on extraneous fact or any fact not presented by a
political party seeking substitution to verify reason given seeking
substitution.
(5)
Whether there was in existence an Indictment of the plaintiff for
same to be used as a basis to verify the reason of error given by the 3rd
respondent for seeking substitution of Plaintiff s name.
(6)
Whether having regard to the concept of lis pendens and the
fact that at the material time of the election, plaintiff being the only
lawful candidate of the People's Democratic Party, he ought not to be
declared the winner of 14th April, 2007 general election in
Rivers State."
The 1st
respondent's issues are aptly captured by appellant's issues reproduced
above. The 2nd respondent's issues for determination raise
matters which were not covered by appellant's issues. These are numbered 19,
20 and 22 on pages 13 and 14 of 2nd respondent's brief. The said
issues read:
"19.
Granted that this Honourable Court has affirmed the justiciability of
Section 34 of the Electoral Act
in Ugwu
v.
Ararume (supra), which the court below has
followed in this instant appeal, assuming but not conceding that there has
been a breach of section 34 of the
Electoral Act) are there limits to the remedies (if any) available to
the plaintiff/ appellant? (Issue No. 3).
20.
Whether the entire appeal is not academic or overtaken by events as a
result of a combination of events, to wit, the unchallenged dismissal of the
appellant from the fold of the PDF, the fact that the elections in issue
have been held in which several other political parties participated, the
declaration of the 2nd respondent as winner of the said
Governorship election and his being sworn in, the existence of appellant's
election petition and other petitions in the Rivers State Governorship
Election Tribunal? (Issue No. 4).
22.
Whether the appellant's exercise of his access to court in the
challenge of alleged breaches of perceived rights in any way derogates from
the constitutional power given to 1st respondent to conduct
elections under the 1999 Constitution and the Electoral Act and if so
whether the Supreme Court can at this point in time venture into a
declaration of who is the winner of the Governorship election in rivers
State? (Issue No. 6).
The 3rd
respondent's issues are covered by appellant's issues. It is not therefore
necessary to reproduce them.
I observed earlier, that
Omehia filed a cross-appeal. The issues formulated from the grounds of
cross-appeal are these:
"Whether
the Court of Appeal was correct when it held that the appeal in issue did
not abate upon the 2nd respondent being sworn in as the Governor
of Rivers State whereupon he acquires constitutional immunity pursuant to
Section 308 of the 1999 Constitution.
Whether the Court of Appeal
was correct in law when after finding that the entire gamut of appellant's
dispute arose from nomination and sponsorship (matter within the domestic
sphere of the 3rd respondent) it did not rule the entire dispute
non-justiciable."
Whether the proceedings were
void ab initio on the basis that evidence viva voce was not
taken in a suit commenced by writs of summons/Statement of claim in respect
of reliefs that were all declaratory in nature?
The P.D.P. formulated one
issue from its cross-appeal. That issue reads:
"Whether the court below was
right in law to hold that the appeal before it was an election related
matter and having so held went further to hold that the second respondent
was not entitled to enjoy the benefits of the immunity conferred on him by
virtue of Section 308 of the Constitution of the Federal Republic of
Nigeria, 1999 having taken the oath of office and the oath of allegiance as
the Governor of Rivers State and placing reliance on the cases of A.D.
Fayose (2004) 8 NWLR
(Pt.876) P.639
and Obih v. Mbakwe [1984] 1
SCNLR 192 to arrive at
this conclusion"
I.N.E.C. and Omehia have
raised some preliminary objections to the appeal.
The grounds of the preliminary
objection raised by I.N.E.C. are these:
"1.
The 1st Respondent submits that the Appellant in his brief
failed to specifically relate the issues to the grounds of appeal and
consequently this Court is urged to discountenance the issues argued in the
Appellant's Brief.
2.
The (sic) 1st Respondent objects to and this Court is
further urged to discountenance all arguments in the Appellant's brief on
vested right or interest at pages 32 Para. 5.26 and
page 33 of the brief which are not covered by any ground of Appeal and ought
to be discountenanced.
3.
The 1st Respondent further objects to Ground 2 of the
Grounds of Appeal as being incompetent, by virtue of the provisions of
Part IX Section 140(1), 2(a) - (b) of
the Electoral Act 2006. The Supreme Court is without power and has not
jurisdiction to declare the Appellant as winner of the
4.
The 1st Respondent further objects to Ground 2 of the
Grounds of Appeal in that the Appellant did not claim such relief in his
Amended Statement of Claim set out at pages 65 to 70 of the Record but more
particularly at pages 68 to 70 of the Record.
5.
The 1st Respondent further objects to Ground 2 of the
Grounds of Appeal, as not arising from the Judgment of the Court of Appeal
delivered on 20/7/2007, subject matter of this Appeal and no special
circumstances having been shown to warrant such exercise which in any event,
neither the Court below nor of this court possesses the requisite
jurisdiction to adjudicate upon same."
Omehia's preliminary
objections read thus:
"(a)
The dispute raised by this appeal concerns who becomes the Governor
of Rivers State as sponsored by the 3rd Respondent (Peoples
Democratic Party) a situation in respect of which elections have been held
on the 14th of April 2007 and the 2nd respondent
issued with a certificate of return having won the said election,
consequently this Honourable Court and all other courts (except those
expressly vested with jurisdiction by the Constitution and the Electoral
Act) lack jurisdiction to invalidate the return or do anything capable of
questioning the said election and return pursuant to
section 140-(1) of the Electoral Act
2006.
(b)
This Honourable Court lacks jurisdiction to entertain appeal from the
subject matter of the original proceedings based on the combined effect of
section 285-(2), 246-(1) (ii) and 233
of the 1999 Constitution, being a post election matter in respect of a
Governorship seat the issue now turns on whether the 2nd
respondent was validly elected into the said office or not.
(c)
The issue(s) contained in the 15 grounds of appeal relate to academic
and hypothetical matters rendered so by the expulsion of the appellant from
the fold of the PDP, the conduct of elections and declaration of results
consequently the matters upon which this Honourable Court is called upon to
adjudicate are not live issues.
(d)
The relief sought by the appellant in the notice of appeal are
fatally flawed in that they are reliefs which suggest that the Supreme Court
can hear an appeal in respect of a matter in which jurisdiction is solely
vested in the election tribunal."
It seems to me that I need
respond at this stage to only the 1st ground of objection raised
by Independent National Electoral Commission (INEC).
In essence, Independent National Electoral Commission (INEC) is
dissatisfied with the issue raised by Amaechi concerning the consideration
of the nature of the reliefs which this Court ought to grant should the
appeal succeed. All the four
other grounds of preliminary objection by Independent National Electoral
Commission (INEC) would appear to be a fall-out of whether or not this Court
should declare Amaechi the Governor of Rivers State.
Omehia's objection would also appear to dwell on the same point.
I think it is appropriate that I first determine the fate of the
appeal before discussing the appropriate relief to grant in the event the
appeal succeeds.
The central issue to be
decided in this appeal is whether or not the two courts below wefe correct
in their conclusion that the reason given by the Peoples Democratic Party
(P.D.P) for substituting Amaechi with Omehia satisfied the requirements of
section 34 of the Electoral Act, 2006.
The said section provides:
"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."
Now, it is not in dispute that
in the PDF primaries for the Governorship elections in
On 14 - 12 - 2006, P.O.P. in
an apparent deference to the results of its party primaries sent the name of
Amaechi to Independent National Electoral Commission INEC as its candidate
for the governorship elections in
"February 2, 2007
Prof. Maurice Iwu,
Chairman,
INEC,
Re: Forwarding of PDF
Governorship Candidate and Deputy -
This is to confirm that
Celestine Ngozichim Omehia and Engineer Tele Ikuru are PDP Governorship and
Deputy Governorship Candidates for
Barrister Celestine Ngozichim
Omehia substitutes Hon. Rotimi Amaechi whose name was submitted in error.
This is for your necessary
action.
I observed earlier that
Amaechi's case was that Omehia did not contest as a candidate in the P.D.P
primaries. The question that arises is - what 'error' made possible for a
non-candidate at PDP primaries to be named the P.D.P. candidate ii the place
of eight candidates who contested and of whom Amaechi came first? I
seems clear that the reason given by P.D.P for
the substitution of Omehia for Amaechi was patently untrue and certainly
unverifiable.
Now in
Ugwu & Anor.
v Araraume & Anor. [2007] 6 S.C. (Part 1) 88
the issue that was considered by this court was whether or not the reason
'error' satisfied the requirement of
section 34 of the Electoral Act in a situation where Engineer Ugwu who
came 16th in the PDF
primaries for the Governorship of Imo State was substituted for Senator
Ifeanyi Araraume who came first.
This court per Niki Tobi, J.S.C. at pages 132 - 134 observed:
"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.
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 jurisdiction 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."
And at pages 149 - 150
of the same report, I observed:
“There are other cases
including Dalhatu v. Turaki [2003] 7
S.C. 1; (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 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."
The respondents'
counsel in their briefs have strenuously argued
that political parties have the right to put up as candidates for elective
offices any persons they deem fit.
They relied with a measure of confidence on the decisions of this
court in
Dalhatu v. Turaki
[2003] 7 SC. 1, [2003]
15 NWLR (P843)
300
and P.C.
Onuoha v. R.B.K. Okafor
[1983]
SC NLR
244 and some
others. Counsel would appear however to have overlooked the fact that there
were no provisions of the Electoral Act similar to
section 34(2) of the Electoral Act
2006 in force at the time these cases they relied upon were decided.
Put simply, section 34(2) has altered the law and made those cases
inapplicable in a case as this. It must be borne in mind that the Political
Parties were a creation of section
221 of the 1999 Constitution.
The same 1999 in section 222 imposes the duty on parties to file
copies of their Constitution with Independent National Electoral Commission
(INEC). Nothing in a
party's Constitution can override or be superior to the Constitution of
Nigeria and the Laws validly enacted by the authority of the Nigerian
Constitution.
Under
Section 85 of the Electoral Act, 2006,
it is mandatory that political parties inform INEC of the date and time of
holding a convention or congress summoned for the purpose of nominating
candidates for any of the elective offices under the Electoral Act 2006.
If parties were not to be
bound by the results of their party primaries in the nomination of
candidates at any level, why would it be necessary for Independent National
Electoral Commission's (INEC) representatives to be present at and monitor
the proceedings of such congress?. It seems that the obligation on the
parties to inform INEC of such congresses was to ensure that INEC would know
and keep a record of candidates who won at the primaries.
At pages
155 to 156 of the judgment of this Court in
Ugwu & Anor.
v. Ararume (supra)
I concluded as follows:
"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."
I am satisfied that the reason
given by PDP as 'error' for substituting Omehia for Amaechi did not meet the
requirement of section 34 of the
Electoral Act.
The matter however does not
end there. The court below which had decided in the Araraume case that the
reason 'error' did not meet the requirement of section 34 later decided in
the present case that the fact that Amaechi had been indicted was good
enough a reason for not following the decision of this court and its own in
the Araraurne case. The
court below also held that INEC, based on Amaechi's alleged indictment was
right to allow the substitution sought by P.D.P
On 10-4-2007, Independent
National Electoral Commission (INEC) brought an application before the court
below for leave to call fresh evidence on appeal.
The evidence sought to be
called on appeal was the ruling which Kuewumi J gave on 30-3-2007 in a suit
in which Amaechi had been challenging his "purported indictment". Kuewumi J
did not decide the case on the merits but rather on the narrow ground that
the filing of the suit constituted an abuse of the court process.
The suit was dismissed but
nothing was decided therein as to whether or not Amaechi was indicted.
It would seem from the final judgment of the court below that it was
the said judgment of Kuewumi J. that was relied upon to arrive at the
conclusion that Amaechi was indicted. Was the court below correct to have
received the said judgment of Kuewumi J in evidence? Was the court below
correct to have taken the said judgment as proof of indictment of Amaechi?
Could the said judgment, which was delivered on 30-3-2007, be the basis of
the substitution of Omehia for Arnaechi which was done on 02-02-2007?
The answers to all the three questions must be in the negative.
At pages 658 to 659 of its
judgment the court below reasoned thus:
"Before this court now is the
judgment of the lower court Coram Kuewumi J. delivered in suit NO.
FHC/ABJ/CS/74/07 delivered on the 3rd of March 2007. Judgment was
delivered after the judgment of the lower court in this suit. The picture is
clear now on printed record from the judgment that-
(1)
that the appellant sued the Attorney
General of the Federation
(2)
Economic and Financial Crimes Commission
(3)
INEC
(4)
Peoples Democratic Party
(5)
Celestine Omehia
Reasons inter alia
are:-
causing
to be published a report that the appellant is not qualified to hold office
of governor
(II)
For the 1st and 2nd defendants unilaterally
setting up an adhoc inquisitorial panel to inquire into official acts of
public officers of the Rivers State Government
(III)
Declaration that all the actions taken by the 1st - 4th
defendants in reliance on the list published by the 2nd
defendant and titled
"Investigated and Indicted" in
which plaintiff now
appellant was falsely presented as a person who
has been found guilty of financial
impropriety, including the setting up of a panel of inquiry,
the purported submission,, and
adoption of the Panel's report by the Federal Government and the
purported substitution of the
plaintiff as governorship candidate
of the result thereof are
unconstitutional, illegal,
null and void and of no effect
whatsoever.
Veracity of the contents of
the published list captioned Investigated and Indicted is a matter for the
court. The fact remains that at the time of screening of the candidates
nominated after screening, the list is available to bodies interested in the
electoral process. The published list being a public document is a document
at large. The 3rd Respondent which forwarded
the letter Exhibit D alleging error for substituting the Appellant and INEC
the 1st Respondent which has a duty and role to verify the
alleged error in the prevailing circumstance.
Is INEC supposed to turn a
blind eye on the published list after the party has requested for the
substitution of the appellant with the list at its disposal and vital
information that the appellant kept a date with EFCC -Federal Government
Panel.
Section 34(1) and (2) cannot
be interpreted to be a clog in the wheel to the enforcement of
Section 182(1) (i) of the 1999
Constitution which reads that ............."
There is no doubt that on the
pleadings upon which this suit was tried, a distinct issue was raised as to
whether or not Amaechi was indicted. INEC in paragraphs 6 and 7 of its
Statement of defence had pleaded thus:
6.
In answer to paragraph 18 of the Statement
of Claim. The 1st defendant states that the plaintiff was only
Substituted by his political party in line with
the Provisions of the Electoral Act, 2006.
7.
Further to paragraph 18, the 1st defendant dates that the
indictment of the plaintiff by EFCC and the acceptance of the report by the
panel set up by the Federal Government provides cogent and verifiable
reasons for the plaintiffs substitution by his political party,"
Amaechi had pleaded in
paragraph 18 of his Amended Statement of Claim thus:
"18.
The plaintiff is very sure that he has not committed any offence to
warrant disqualification.
In his reply to Independent
National Electoral Commission's statement of defence, Amaechi in paragraphs
1 and 6 pleaded thus:
"1.
Plaintiff states that he was not indicted by the Economic and
Financial Crimes Commission otherwise known as "EFCC" or any panel set up by
the Federal Government and the Federal Government of Nigeria never accepted
any report in this regard.
2.
The panel set up by the Federal Government only submitted its report
on Monday 19th day of February, 2007 although the news of and its
actual constitution came on Wednesday 13th day of February 2007."
Guided by the pleadings of
Independent National Electoral Commission and Amaechi, it is apparent that
the issues to be resolved at the trial were:
(1)
Whether or not Amaechi was indicted by EFCC and whether the Federal
Government set up a panel on such indictment and whether any report of such
panel was accepted by the Federal Government of Nigeria.
(2)
Whether in any case, the news concerning a report given to the
Federal Government on 19 - 02 - 2007 or 13 - 02 - 2007 could be the basis of
Amaechi's substitution on 02 - 02 - 2007."
Any fresh evidence to be
received by the court below on appeal could only be such evidence as would
assist the court to resolve the issues which I have identified above.
The power of the court below to receive farther evidence on appeal is
governed by Order 1 rule 19(2) of the
Court of Appeal Rules 2002 which provides:
"(2)
The court shall have power to receive further evidence on questions
of fact either by oral examination in court, by affidavit or by deposition
taken before an examiner or Commissioner as the court may direct, but in the
case of an appeal from a judgment after trial or hearing of any cause or
matter on the merits, no such further evidence (other than evidence as to
matters which have occurred after the date of the trial or hearing) shall be
admitted except on special grounds."
There are judicial authorities
governing the manner in which the power to receive further evidence on
appeal should be exercised. In
Obasi & Ors.
v. Onwuka & Ors. [1987] 2 N.S.C.C 981, this court per Oputa J.S.C.
considered the circumstances under which fresh evidence may be received on
appeal. At pages 984-985 this court said:
'The guiding principle here is
that to avoid surprise to the opposite party the Plaintiff should plead all
the facts and all the documents he intends to rely on at the trial of the
case. During that trial he should establish by evidence oral or documentary,
those facts on which his case rests and depends. The trial Court usually
comes to a decision on the totality of the evidence led on both sides. The
purpose of an appeal is to find out whether on that evidence and the
applicable law the trial Court came to right decision. It will normally be
wrong to "judge" the trial judge on the basis of evidence which was not
before him and which he could not have therefore considered.
This looks like the brutal absurdity of commanding a man today, to do
something yesterday. To talk therefore of assessing the Tightness or
wrongness of the trial Court's verdict today by evidence that will be given
tomorrow is to talk in blank prose.
This is one reason why appellate courts are very reluctant to admit
"fresh evidence", new evidence or additional evidence" on appeal except in
circumstances where the matter arose ex,
improvise which
no human ingenuity could forsee and it is in the interest of justice that
evidence of that fact be led:-
R. v. Dora Harris
(1927) 28 Cox 432.
But by and large, at least in criminal cases, (and the principle
should also be the same in civil cases) the courts lean against hearing
fresh evidence on appeal, see
R. v. Alexander Campbell Mason
(1923) 17 CR. App. R. 160: See also
R. v. Walter Graham Rowland
(1947) 32 C.R. App. R.29.
In civil cases the Court Will
permit fresh evidence in furtherance of justice under the following
circumstances:
(i)
Where the evidence sought to be adduced is such as could not have
been obtained with reasonable care and diligence for use at the trial.
(ii)
Where the fresh evidence is such that if admitted would have an
important, but not necessarily crucial, effect on the whole case.
(iii)
Where the evidence sought to be tendered on appeal is such as is
apparently credible in the sense that it is capable of being believed.
It need not necessarily be incontrovertible.
In
Attorney-General of the Federation v.
Malam Modu Alkali (1972) 12 S.C.
this Court (per Elias, CJ.N.) refused an application for leave for the
appellant/applicant to adduce further or additional evidence on appeal
because it was contrary to Order 7
Rule 24 of the Federal Supreme Court Rules 1961. The
reason given. There fore the non-production of the Hire Purchase
Agreement sought to be tendered on appeal was the appellants' witnesses'
inadvertence or gross-negligence.
The conditions for admitting fresh evidence on appeal are so
stringent that there are very very few cases if any in our Courts where such
evidence was admitted (but see the Following English
cases
Ladd v. Marshall
(1954)
1 W.L.R. 1489 at p. 1491: Skone v.
Skone (1971) 1 W.L.R. 812: (1971) 2
All E.R. 582 where the
proposed further evidence satisfied the conditions precedent)."
See also
Asaboro v. Aruwaji [1974] 4 S.C 119
at pages 123 - 125 where this court said:
"But that is not the only
hurdle in the way of the applicant in this case. For instance, there is the
fact that the application does not seem to satisfy at least, one of the
recognized principles of law which govern the exercise of its power by the
Court of Appeal in granting special leave for new or further evidence to be
adduced on appeal. The three cardinal principles are as follows:-
First, it must be shown that
the evidence could not have been obtained with reasonable diligence for use
at the trial.
Secondly, the evidence must be
such that, if given, it would probably have an important influence on the
result of the case, though it need not be decisive.
Thirdly, the evidence must be
such as is presumably to be believed, or in other words, it must be
apparently credible, though it need not be incontrovertible.
I take the view
that, it has not been shown that the documentary
evidence which the applicant is now seeking to put in at this stage, could
not have been obtained with reasonable diligence for use at the trial.
Indeed, the facts contained in that document were specifically
pleaded in the amended statement of defence.
The onus was therefore, on the applicant in the court below to prove
the averments in her pleadings.
The defence, as I have said, knew long before the trial that those
facts should be assembled."
In line with the judicial
authorities referred to above, evidence to be admitted on appeal under Order
1 rule 19(2) above should only be one which is apparently credible in the
sense that it is capable of being believed. It is in the light of this that
I must say that the reliefs sought by Amaechi in a previous suit could not
be regarded as credible evidence as to whether or not he had been previously
indicted or whether the Federal Government had accepted a report of such
indictment.
In
Action Congress & Anor.
v. Independent National Electoral Commission [2007] 6 S.C. (Part II) 212 at
pages 229 to 231,
this court per Katstina-Alu J.S.C observed:
"It was also contended for the
defendant that the ground of disqualification in Section 137(1)(i)
is self-executing. I am
not impressed by this contention.
I think a dispassionate reading of the provision will reveal that it
is not self-executing. To invoke against any candidate the disqualification
therein provided would require an inquiry as to whether the tribunal or
administrative panel that made the indictment is of the nature or kind
contemplated by Section 137(i) read together with other relevant provisions
of the Constitution in particular Section 36(i), which provides that "in the
determination of his civil rights and obligations, including any question or
determination by or against any government or authority, a person shall be
entitled to a fair hearing within a reasonable time by a court or other
tribunal established by law and constituted in such manner as to secure its
Independence and impartiality" as well as the provision in subsection (5) of
Section 36 that "every person who is charged with a criminal offence shall
be presumed to be innocent until he is proved guilty."
The disqualification in
Section 137(1)(i) clearly involves a deprivation
of right and a presumption of guilt for embezzlement or fraud in derogation
of the safeguards in Section 36(1)
and (5) of the Constitution. The trial and conviction by a court is the
only constitutionally permitted way to prove guilt and therefore the only
ground for the imposition of criminal punishment or penalty for the criminal
offences of embezzlement or fraud. Clearly, the imposition of the penalty of
disqualification for embezzlement or fraud solely on the basis of an
indictment for these offences by an administrative panel of inquiry implies
a presumption of guilt, contrary to
Section 36(5) of the Constitution of the
An indictment is no more than
an accusation: In
Sokefun v. Akinyemi
(supra) this court per Fatayi-Williams, CJN said at page 146 as follows:
"It seems to me that once a
person is accused of
a criminal offence, he must be tried in a court of law where the complaints
of his accusers can be ventilated in public and where he would be sure of
getting a fair hearing ........
No. other Tribunal,
investigating panel or Committee do ......
If regulations such as those under attack in this appeal were valid, the
judicial power could be wholly absorbed by the Commission (one of the organs
of the Executive Branch of the State Government) and taken out of the hands
of the magistrates and judges ...... If judicial
power will certainly be eroded ......The jurisdiction and authority of the
courts of this country cannot be usurped by either the Executive or the
Legislative branch of the Federal or State Government under any guise or
pretext whatsoever."
The indictment of a candidate
aspiring to the office of Governor is governed by
Section 182(1)(i)
of the 1999 Constitution which provides:
"182(1) No person shall be
qualified for election to the office of Governor of a state if-
(i)
He has been indicted for embezzlement or fraud by a judicial
commission of Inquiry or an Administrative Tribunals of Inquiry or a
Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry
Law or any other Law by the Federal or State Government which indictment has
been accepted by the Federal or State Government ......"
Section 182(1)(i)
above is in the Constitution in order to ensure that only persons of
impeccable character and integrity are eligible for the office of a Governor
of a State. It is to ensure transparency and high standard of probity in
governance. It is not to be used as an instrument by politicians to hinder
the emergence of their opponents or adversaries as Governors.
Regrettably, the said provision has been used to witch hunt and
victimize. It is a provision which in its application
must be read and construed along with other provisions of the 1999
Constitution in section 36(1), (2), (3), (4) and (5) which provide:
"36.(1)
In the determination of his civil rights and obligations, including
any question or determination by or against any government or authority, a
person shall be entitled to a fair hearing within a reasonable time by a
court or other tribunal established by law and constituted in such manner as
to secure its independence and impartiality.
(2)
Without prejudice to the foregoing provisions of this section, a law
shall not be invalidated by reason only that it confers on any government or
authority power to determine questions arising in the administration of a
law that affects or may affect the civil rights and obligations of any
person if such law-
(a)
provides for an opportunity for the person
whose rights and obligations may be affected to make representations to the
administering authority before that authority makes the decision affecting
that person; and
(b)
contains no provision making the
determination of the administering authority final and conclusive.
(3)
The proceedings of a court or the proceedings of any tribunal
relating to the matters mentioned in subsection (1) of this section
(including the announcement of the decisions of the court or tribunal) shall
be held in public.
(4)
Whenever any person is charged with a criminal offence, he shall
unless the charge is withdrawn, be entitled to a fair hearing in public
within a reasonable time by a court or tribunal......................
(5)
Every person who is charged with a criminal offence shall be presumed
to be innocent until he is proved guilty:
Provided that nothing in this
section shall invalidate any law by reason only that the law imposes upon
any such person the burden of proving particular facts."
It is not a simple matter to
find a citizen of
"182(2)
Where in respect of any person who has been-
(a)
adjudged to be a lunatic;
(b)
declared to be of unsound mind;
(c)
sentenced to death or imprisonment or
(d)
adjudged or declared bankrupt, an appeal against the decision is
pending in any court of law in accordance with any law in force in Nigeria,
subsection (1) of this section shall not apply during a period beginning
from the date when such appeal is lodged and ending on the date when the
appeal is finally determined or, as the case may be, the appeal lapses or is
abandoned, whichever is earlier."
It is simply impermissible
under a civilized system of law to find a person guilty of a criminal
offence without first affording him the opportunity of a trial before a
court of law in the country. See also
article 7(l) (a) of the African charter on Human Rights cap. 10., Laws of
the Federation.
The court below would appear not to have paid heed or attention to the
reasoning of this court in
Action Congress &
Anor. Vs.
Independent National Electoral
Commission (INEC) (supra) in coming to the conclusion that
Amaechi was indicted.
Indeed, Amaechi needed not have asked his supposed indictment to be set
aside by Kuewumi since the same was not in any case cognizable under the
law. No court of law ought to pay any iota of regard to such alleged
indictment.
Another matter deserves to be
mentioned here. The EFCC is a statutory body created under the Laws of
Nigeria. Its duties
include the investigation arid prosecution of a class of criminal offences.
In essence, once its investigation has shown prima facie that
a person has committed a criminal offence, the
duty of EFCC is to have such offender prosecuted in a court of law. I know
of no provision of the law which enables EFCC upon the conclusion of
investigation in a criminal case to send the report or case file to either
the Federal or State Government.
I am surprised therefore to see that INEC pleaded that Amaechi was
indicted by EFCC and that the report on the indictment was accepted by the
Federal Government. That
procedure is not backed by any law in force. Indeed, it is a subversion of
the law and an unconcealed attempt to politicize the investigation and
prosecution of criminal offences.
And finally on the point, the
case made by Amaechi was that P.D.P had not given a cogent and verifiable
reason by its letter on 02-02-2007 as required under
section 34(2) of the Electoral Act
for his substitution. How could the ruling by Kuewumi J on 30-03-2007 or any
other date subsequent to 02-02-2007 be the reason relied upon by the P.D.P.
for an act done on 2-2-2007? In the course of his address before this Court
on 25-10-2007, Mr. L. Fagbemi, S.A.N. of Counsel for Amaechi likened the
behaviour of INEC as being more catholic than the Pope. I think it is an apt
description which fully captured the approach of INEC in this matter.
I am satisfied that the court
below wrongly and improperly admitted in evidence the ruling of Kuewumi J.
in Suit No. FHC/ABJ/CS/74/2007 as further evidence on
appeal. The said ruling proves nothing to show that Amaechi was ever
indicted. It is difficult for me to understand how the Court of Appeal could
sJip into such error.
If one may ask - what was the offence for which the court below held
that Amaechi was indicted?
The facts of this case are
similar to those in Araraume. Indeed the facts in the Araraume case are more
favourable to Engineer Ugwu than those in this case to Omehia.
Whereas Omehia did not contest P.D.P Primaries at all, Engineer Ugwu
in the Araraume case contested and placed 16th.
The court below should simply have followed its decision and the
decision of this court in the Araraume case. The implication of my finding
is that this appeal ought to be allowed. I hold that the substitution of
Omehia for Arnaechi was not done in accordance with the law. I accordingly
set aside the judgment of the court below which was wrongly premised.
Let me at this stage respond
to the issues raised by Omehia and PDP in their cross-appeals.
It was contended that by virtue of
section 308 of the 1999 Constitution,
Amaechi's Suit against Omehia should abate and be discontinued following the
swearing-in of Omehia as Governor of Rivers State.
In reacting to the application brought before it concerning Omehia on
the question of immunity biased on section 308, the court below said:
"The cases cited by the
learned senior counsel for the 2nd Respondent are easily
distinguishable from the case in hand. For the case of
Attorney-General of the Federation
v. Alhaji Atiku Abubakar & 1 Or. affects a
criminal proceeding,
Global Communications v. Donald
Duke affects a civil proceeding in which the governor sued
another person and the court held that immunity granted by Section 308 does
not include his ability to sue other people.
Umannah v. Attah which
affects an election matter is not on all fours with this case in hand. I
hold that the provision of section 308 is only applicable to ordinary civil
proceedings and criminal proceedings and not in election related matters.
In this case the
subject-matter queries the foundation of his appointment as governor. If the
governor is said to be immune under
Section 308 of the 1999 Constitution the resultant effect is that once a
person is declared and sworn in as governor-elect that ends the matter and
no one can complain or take any legal action even if the person conducted
gross election malpractices.
In the case of
A.D. v. Fayose 2004 8 NWLR pt 876 pg
639 at pg 653 D-G it was observed that such decision will encourage
gross wrongful and illegal activities among the parties contesting for the
position and negative the spirit and necessary intendment of the
Constitution and hence destroy democracy.
On that score I hold that in an election related matter where the
status of the 2nd Respondent as governor is being challenged, the
immunity conferred on him by the Constitution is equally in question. The 2nd
Respondent/Cross-Appellant does not enjoy any immunity from being sued in
this Suit. Obi v. Mbakwe 1984 1 SCNLR
192, Unongo
v. Aku 1985 6 NCLR pg. 262."
I think that the court below
correctly decided the point. Section
308 of the 1999 Constitution provides:
308. (1)Notwithstanding
anything to the contrary in this Constitution, but subject to subsection (2)
of this section
(a)
no civil or criminal proceedings shall be
instituted or continued against a person to whom this section applies during
his period of office;
(b)
a person to whom this section applies
shall not be arrested or imprisoned during that period either in pursuance
of the process of any court or otherwise; and
(c)
no process of any court requiring or
compelling the appearance of a person to whom this section applies, shall be
applied for or issued:
Provided that in ascertaining
whether any period of limitation has expired for the purposes of any
proceedings against a person to whom this section applies, no account shall
be taken of his period of office.
(2)
The provisions of subsection (1) of this section shall not apply to
civil proceedings against a person to whom this section applies in his
official capacity or to civil or criminal proceedings in which such a person
is only a nominal party.
(3)
This section applies to a person holding the office of President or
Vice President, Governor or Deputy Governor; and the reference in this
section to "period of office" is a reference to the period during which the
person holding such office is required to perform the functions of the
office."
Section 308 above is not meant
to deny a citizen of this country his right of access to the court.
It is a provision put in place to enable a Governor, while in office,
to conduct the affairs of governance free from hindrance, embarrassment and
the difficulty which may arise if he is being constantly pursued and
harassed with court processes of a civil or criminal nature while in office.
It is a provision designed to protect the dignity of the office.
However, the proviso under section 308 ensures that the period when a
governor enjoys immunity shall not be taken into account in computing the
time limit for initiating an action under the Statute limitation. Section
308 cannot be relied upon where the nature of the suit is such that the
Res in dispute
will be destroyed permanently with the effluxion of time. To hold that
section 308 can be invoked in a matter relating to the eligibility for a
political office where the tenure of such office has been set out in the
Constitution will translate into denying to a plaintiff his right of access
to the court. It is only
in a case where a deferment of plaintiff s right of action is not likely to
destroy this
Res
in the suit that section 308 can be invoked.
In this case, to ask Amaechi to wait till the end of Omehia's tenure
of office as Governor before pursuing his suit is to destroy forever his
right of action.
There is also the issue raised
in Omehia's cross-appeal that the court below having held that Amaechi's
suit was hinged on nomination and sponsorship of a candidate for election by
a political party should have held that Amaechi's suit was not justiciable.
The simple answer is that even if Amaechi's suit related to nomination and
sponsorship of a candidate for an election, it is still not an election
matter. This is a
pre-election matter premised on the breach of Amaechi's right derived from
under the Constitution of Nigeria and
Section 34 of the Electoral Act 2006.
The claim of Amaechi is simply that his substitution by P.D.P was not
in accordance with section 34 of the
Electoral Act, 2006.
The court has a duty to enforce the provisions of the laws validly enacted
by National Assembly pursuant to powers derived from the Constitution. The
Electoral Act 2006 is one of such laws. The major flaws in the case of the
respondents throughout this case is the belief held by them that the right
of political parties to decide who should contest an election as party
candidates is superior to the provisions of the Constitution of Nigeria and
the Laws. It is my view
that a political party is able to control the affairs of the party only to
the extent that the exercise of such control does not run against the
provisions of the Constitution and Laws of Nigeria.
Omehia's counsel, J.B. Daudu
Esq. S.A.N. has also argued that the proceedings in this case are void
ab initio on the
basis that evidence viva voce was not taken in a suit commenced by
writ of Summons and Statement of Claim. Learned senior counsel has in
support of this argument relied on Vincent I, Bella
Vs. Magnus Eweka [1981] 1 S.C. 101 at 103 where Obaseki, J.S.C
observed:
"I turn to the counter-claim
....... He had not served any defence to the counter-claim. According to RSC
Ord. 19 R7 (l) 'on the hearing of the application the" court shall give such
judgment as the plaintiff appears entitled to on his statement of claim.
'Likewise with 'a counter-claim'.
See RSC Ord. 19 R8.
Although the word 'shall' is used in that rule, it is clear from the
authorities that it is not imperative but directory.
The court will not enter a judgment which it would afterwards set
aside on proper grounds being shown. See
(Underlining is mine)
There is no doubt that this
suit was commenced by Writ of Summons before the Federal High Court,
The said record for 2/3/2007
reads:
"Parties:
Absent.
Counsel:
L. O. Fagbemi SAN for the Plaintiff with S. Dapan Addo H.O. Afolabi
S.O. Adewoye; A.O. Popoola O.O. Ogunmola (Miss.)
-Kabiru Bala with U. Elekwa
for 1st defendant
-B.C. Ukala SAN for the 2nd
Defendant with O. Wali, C. Ihua-Maduenyi and K.K. Obayi
-R.O.
Yusuf for 3rd defendant with C.L. Nwankwo.
Mr. Fagbemi SAN:We
have filed our issues for determination dated 27/2/07.
The first Defendant has filed issues dated 2/3/07, 2nd
defendant filed issues dated 28/2/07, 3rd defendant filed on
1/3/07, we have agreed to tender documents by consent.
Exhibit A. - PDP result of
primary election 2006/2007
Exhibit R. - PDP letter dated
14/12/06 to chairman of defendant
Exhibit C. - INEC form CF001
(Affidavit of particulars) Exhibit D, - Letter of 2/2/07 by PDP to chairman
of 1st Defendant Exhibit E. - Constitution of PDP Exhibit F. -
Electoral guidelines 2006 by PDP
Mr. Bala: No objection
Mr. Ukala SAN: No objection
Mr. Yusuf: No objection
Court: Admitted and marked
Exhibit A - F."
(underlining
mine)
From the extract of the
proceeding reproduced above, it is apparent that all the parties including
INEC, Omehia and P.D.P agreed that Exhibits A - F be put in evidence by
consent. None of them
afterwards disputed the contents of the said documents.
The judgment of the trial High Court was based on the said exhibits A
- F not on the admissions made by any of the parties.
The parties had chosen to follow a procedure which was not the usual
practice but which nevertheless satisfied the requirements of fair hearing.
I do not therefore think that the submission of senior counsel for
Omehia on the point is well founded.
It was also contended that
arising from the fact that an election has been conducted in
"On the objection that the
appeal is dead or no longer a live issue, it is humbly submitted that once
an election has been conducted in respect of an office to which the 'Act'
relates and a return declared, all courts except those specified as
competent to take election matters loose their jurisdiction in matters
relating to such an office. Conversely, no person shall question 'in any
manner' the election of any person except by way of election petition.
See section 140
(1) of the Electoral Act 2006.
This provision is in consonance with
section 285(2) of the 1999
Constitution which provides thus:
(2)
There shall be established in each State of the Federation one or
more election tribunals to be known as the Governorship and Legislative
Houses Election Tribunals which shall, to the exclusion of any court or
tribunal have original jurisdiction to hear and determine petitions as to
whether any person has been validly elected to the office of Governor or
Deputy Governor or as a member of any legislative house."
My first reaction to this
submission is that Amaechi's case is not an election petition as to whether
Omehia has been validly elected to the office of Governor.
Section 140(1) of the
Electoral Act to
which senior counsel referred reads:
"(1)
No election and return at an election under this Act shall be
question (sic) in any manner other than by a petition complaining of an
undue election or undue return (in this Act referred to
as an "election petition”) presented to the tribunal or court
in accordance with the provisions of the Constitution or of this Act and in
which the person elected or returned is joined as a Party."
At the commencement of this
judgment, I reproduced seriatim the substance of the reliefs which Amaechi
had sought from the trial High Court.
Amaechi's suit was filed on 26/01/07.
The Governorship elections for
"(1)
An election to the office of Governor of a
State shall be held on a date to be appointed by the Independent National
Electoral Commission.
(2)
An election to the office of Governor of a state shall be held on a
date not earlier than sixty days and not later than thirty days before the
expiration of the term of office of the last holder of that office."
Section 178 above is a
provision of the 1999 Constitution intended to ensure a smooth transition
from one administration to another.
It is not a provision to destroy the right of access to the court
granted to a citizen under section 36 of the same Constitution. In the same
way section 285(2) relied upon by senior counsel cannot be construed to
destroy the jurisdiction which the ordinary courts in
As I shall shortly show, it is
my view that the approach of the respondents to this case was to 'kill'
Amaechi's case in the misconceived notion that once elections were held the
court would lose its jurisdiction.
It is my firm view that the jurisdiction of the ordinary courts to
adjudicate in pre-election matters remains intact and unimpaired by
sections 178(2) and 285(2) of the
1999 Constitution.
I now consider the relief to
be granted to Amaechi in this case even if elections to the office of
Governor of Rivers State had been held.
As I stated earlier there is no doubt that the intention of Amaechi,
to be garnered from the .
nature of the reliefs he sought from the court of trial, was that he
be pronounced the Governorship candidate of the P.D.P for the April, 2007
election in
"What is the argument on the
other side? Only
this, that no case has been found in which it had
been done before. That
argument does not appeal to me in the least.
If we never do anything which has not been done before we shall never
get anywhere. The law
will stand still whilst the rest of the world goes on and that will be bad
for both."
The Supreme Court in
"One stream that permeates all
these decision and I held the view that this is a good sign for the
administration of justice in this country, is the clear, unadulterated water
filled with great concern for the justice of the case.
The signs are now clear that the time has arrived that the concern
for justice must be the overriding force and actions of the court.
I am not saying that ex debito
Justiciae by
itself is a cause of action.
It is to be the basis for the operation of the court, whether in the
interpretative jurisdiction or basic attitude towards the examination of a
case."
The sum total of the recent
decisions of this court is that the court must move away from the era when
adjudicatory power of the court was hindered by a constraining adherence to
technicalities. This
often results in the loser in a civil case taking home all the laurels while
the supposed winner goes home in a worse situation than he approached the
court.
Now in this court, Omehia
never argued that he took part in P.D.P primarie He therefore did not
manifest a desire for the office of Governor of Rivers State. Amaechi vied
in the primaries for the office.
He won overwhelmingly. Amaechi's name was sent to INEC as P.D.P's
candidate. This approach
by P.D. reflected the result of the election. I earlier reproduced section
34. The provisions of sections 34 and
85 of the Electoral Act, 2006 ought to be read together.
I reproduce them hereunder:
"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.
"85.(1)
Every registered political party shall give the Commission at least
21 days notice of any convention, congress, conference or meeting convened
for the purpose of electing members of its executive committees, other
governing bodies or nominating candidates for any of the elective offices
specified under this Act.
(2)
The Commission may with or without prior notice to the political
party monitor and attend any convention, congress, conference or meeting
which is convened by a political party for the purpose of:
(a)
electing members of its executive
committees or other governing bodies;
(b)
nominating candidates for an election at
any level;
(c)
approving a merger with any other
registered political party
(3)
Notice of any congress, conference or meeting for the purpose of
nominating candidates for Area Council elections shall be given to the
Commission at least 21 days before such congress, conference or meeting."
There is no doubt that P.D.P
having previously sent Amaechi's name to INEC by letter on 26/12/2006 could
only validly remove the name or withdraw it if it complied with section
34(2) above. The cogency or the
verifiability of the reason for the withdrawal of a candidate's name has to
be considered against the background that INEC officials, pursuant to
section 85 of the Electoral Act above, would have been present at a meeting
or congress of a party called for the nomination of a candidate for an
elective office. INEC
would thus know the results of such party primaries.
When a political party later asks to substitute a candidate, it does
so against the background of the result of the primary election. If there is
a problem with a candidate who comes first, then the party will opt for the
2nd and later 3rd
etc in that order.
There is simply no room for a candidate who never contested a primary
election in such setting to emerge a party candidate. This seems to me a
praiseworthy attempt to enthrone intra-party democracy in order to ensure
that our democracy is truly reflective of the people's choice. Now
section 221 of the 1999 Constitution
provides;
"No association other than a
political party shall canvass for votes for any candidate at any election or
contribute to the funds of any party or to the election expenses of any
candidate at an election.”
The above provision
effectually removes the possibility of independent candidacy in our
elections; and places emphasis and responsibility in elections on political
parties. Without a
political party a candidate cannot contest.
The primary method of contest for elective offices is therefore
between parties. If as
provided in Section 221 above, it is only a party that canvasses for votes,
it follows that it is a party that wins an election.
A good or bad candidate may enhance or diminish the prospect of his
party in winning but at the end of the day, it is the party that wins or
loses an election.
I think that the failure of respondents' counsel to appreciate the
overriding importance of the political party rather than
the candidate that has made
them lose sight of the fact that whereas candidates may change in an
election but the parties do not.
In mundane or colloquial terms we say that a candidate has won an
election in a particular constituency but in reality and in consonance with
section 221 of the constitution,
it is his party that has won the election.
I mentioned earlier that P.D.P
did not provide cogent and verifiable reason for the attempt to substitute
Amaechi with Omehia. Not having done so, Amaechi who had acquired a vested
right by his victory at the primaries and the submission of his name to INEC
was never removed as P.D.P's candidate.
If the law prescribes a method by which an act could be validly done,
and such method is not followed, it means that that act could not be
accomplished. What P.D.P did was merely a purported attempt to effect a
change of candidates. But
as it did not comply with the only method laid down by law to effect the
change, the consequence in law is that the said change was never effected.
In the eyes of the law, Amaechi's name earlier sent to INEC was never
removed or withdrawn.
In his argument in the brief
filed for P.D.P, J.K. Gadzama S.A.N, senior counsel argued that Amaechi who
had not contested the election could not be declared the winner.
He stated that such a declaration would amount to a negation of
democratic practice. With
respect to counsel, I think he missed the central issue which is that it was
in fact Amaechi and not Omehia who contested the election.
Omehia remained no more than a
pretender to the office. The
one unchanging feature is that P.D.P was the sponsoring party.
As for the argument that it is
a negation of democracy to declare Amaechi the winner, it must be borne in
mind that this suit was brought to court as an intra-party dispute.
At the time it was brought, the question concerning which party or
candidate would win the Governorship election in
In any case
section 147 of the Electoral Act,
2006 provides:
"147(1)Subject to subsection
(2) of this Section, if the Tribunal or the Court as the case may be,
determines that a candidate who was returned as elected was not validly
elected on any ground, the Tribunal or the Court shall nullify the election.
(2)
If the Tribunal or the Court determines that a candidate who was
returned as elected was not validly elected on the ground that he did not
score the majority of valid votes cast at the election, the Election
Tribunal or the Court, as the case may be, shall declare as elected the
candidate who scored the highest number of valid votes cast at the election
and satisfied the requirements of the Constitution and this Act.
(3)
Subject to the provision of
subsection (2) of Section 149 of this Act, on the motion of a respondent
in an election petition, the Election Tribunal or the Court, as the case may
be, may strike out an election petition on the ground that it is not in
accordance with the provisions of this Part of this Act, or the provision of
First Schedule of this Act."
And Paragraph 27 of the First
Schedule to the Electoral Act 2006 also Provides:
27.(1)
At the conclusion of the hearing, the Tribunal shall determine
whether a person whose election or return is complained of or any other
person, and that person, was validly returned or elected, or whether the
election was void, and shall certify the determination to the Resident
Electoral Commissioner or the Commission.
(2)
If the Tribunal or Court has determined that the election is invalid,
then, subject to Section 147 of this Act, where there is an appeal and the
appeal fails, a new election shall be held by the Commission.
(3)
Where a new election is to be held under the provisions of this
paragraph, the Commission shall appoint a date for the election which shall
not be later than 3 months from the date of the determination."
The combined effect of section
147 and paragraph 27 above is that this court has no jurisdiction to nullify
an election and order a fresh one. All that I can do it to declare whether
or not Amaechi was the candidate validly nominated and to grant him the
reliefs which on the evidence he is entitled to. The jurisdiction to declare
the election invalid is vested in an election tribunal.
It has been argued that this
court has no jurisdiction to entertain this appeal. I think that such
argument is an attempt to 'kill' Amaechi's case.
Sections 144 and 145 of the
Electoral Act 2006 provide:
"144. (1)
An election petition may be presented by one or more of the following
persons:
(a)
a candidate in an election;
(b)
a political party which participated in
the election
(2)
The person whose election is complained of, is in this Act, referred
to as the Respondent, but if the petitioner complains of the conduct of an
Electoral Officer, a Presiding Officer, a Returning Officer or any other
person who took part in the conduct of an election, such officer or person
shall for the purpose of this Act be deemed to be a Respondent and shall be
joined in the election petition in his or her official status as a necessary
party provided that where such officer or person is shown to have acted as
an agent of the Commission, his non-joinder as aforesaid will not on its own
operate to void the petition if the Commission is made a party."
"145. (1)An
election may be questioned on any of the following grounds,
(a)
that a person whose election is questioned
was, at the time of the election, not qualified to contest the election;
(b)
that the election was invalid by reason of
corrupt practices or non compliance with provisions of this Act;
(c)
that the respondent was not duly elected
by majority of lawful votes cast at the election; or
(d)
that the petitioner or its candidate was
validly nominated but was unlawfully excluded from the election.
(2)
An act or omission which may be contrary to an instruction or
directive of the Commission or of an officer appointed for the purpose of
the election but which is not contrary to the provisions of this Act shall
not of itself be a ground for questioning the
election."
It is apparent that based on
the above sections, Amaechi would have been unable to have a platform upon
which to make a case at the election tribunal. The nearest he could come to
securing a platform before an election tribunal would have been under
section 145(d) above. But his case would still have come to grief because
that provision does not cover intra party dispute as in the instant case.
Before I close this judgment,
it is important that I discuss briefly the approach of the respondents to
this case. The political parties in
When however, the court below
and this court gave the judgment in the Araraume case, whatever
uncertainties there might have been, in relation to the interpretation of
section 34 of the Electoral Act
were removed. This is the
more so when parties to the case had given an indication to the court below
to abide with the judgment of this Court in the Araraume case. The said
judgment was given on 5/04/2007 when the elections were still 9 days away.
But P.D.P on 10/04/2007 put out a publication exhibit 'F’, expelling
Araraume and Amaechi from P.D.P. At the time of the expulsion, Araraume had
shortly been declared by this court to be the validly nominated candidate of
the P.D.P. Amaechi's appeal was still pending before the court below. In a
part of the publication P.D.P. said:
"The National Working
Committee also considered the cases and reports brought against Senator
Ifeanyi Ararume [Imo State] and Hon. Rotimi Amaechi [Rivers] from the State
Chapters and proceeded to expel both of them from the PDP for gross
indiscipline and wanton violation of the PDP Constitution. Consequently,
the PDP has no gubernatorial candidate in
(underlining
mine)
In relation to Araraume, the
message sent to the general public translated into saying that the P.D.P was
not bound to obey the judgment of the court. The P.D.P. by publicly
announcing that it had no candidate for Imo State Governorship
election,
clearly destroyed the efficacy of the judgment in favour of Ararume given by
this Court in order to destroy his chances at the election. In relation to
the Amaechi's case., the message to the public
was that whatever judgment the court gave was irrelevant. Worse still, the
P.D.P went before the court below to ask that the appeal in Amaechi's case
be struck out on the ground that with his expulsion, the court had lost the
jurisdiction to hear the case.
Let me say for the' avoidance of doubt that the expulsion of Amaechi from
the P.D.P. at the time when his appeal was pending before the court below
was unlawful and amounts to a 'calculated attempt to undermine judicial
authority.
Now in
A.G. Vs.
Butterworth
[1962] 3 ALL ER 326 at 329 lord
Denning M.R. observed:
"I have no hesitation in
declaring that the victimization of a witness is contempt whether done
whilst the proceedings are still pending or after they have finished, such a
contempt can be punished by a court itself before which he has given
evidence, and so that those who think of doing such things may know where
they stand, I would add that, if the witness has been darminified by it, he
may have redress in a civil court for damages."
In Re
Ludlow Charities Lochmere Charllori's case 1837 40 ER 661 at 670 Lord
Coltenham. [Lord
Chancellor] observed:
"All these authorities tend to
the same point; they show that it is immaterial what measures are adopted,
if the object is to taint the source of justice and to obtain a result of
legal proceedings different from what would follow in the ordinary course;
it is contempt of the highest order although such a foolish attempt as this
cannot be supposed to have any effect, it is obvious that if such cases
........."
The reliance on the plainly
contemptuous conduct of P.O.P in expelling Amaechi as a basis to deny the
court below the jurisdiction to hear his appeal is particularly alarming. In
Re Septimis Parsonage & Co 1901 Chancery Division 424 at 430 Wright J
alluding to such occurrence said:
"Where there is a real
interference with the jurisdiction of the court, which is a better phrase
than contempt of Court, the court has no option but to act, however
unwilling it is to deal with matters affecting the liberty of the subject
......."
Remarkably and perhaps
unexpectedly, the court below did not react as it should in punishing this
behaviour of the P.D.P. More shockingly the court below struck out Amaechi's
appeal on the ground that he had been expelled from P.D.P during the
pendency of his appeal. And when this court, following an appeal by Amaechi
against the order striking out his appeal, ordered that the appeal be heard
expeditiously, the court below at the behest of Omehia's counsel, supported
by INEC's and P.D.P.'s counsel, concluded that the judgment of this court
which ordered that the appeal be heard expeditiously needed further
clarification before it could be obeyed.
These occurrences needlessly
brought the administration of justice to disrepute and I am greatly alarmed
by these developments.
The result of this calculated and improper behaviour was that the
respondents ensured that the elections for the Governorship office in
This court and indeed all
courts in
Section 6(6) (a) of the 1999
Constitution
provides:
"(6)
The judicial powers vested in accordance with the foregoing
provisions of this section –
(a)
shall extend, notwithstanding anything contrary in this Constitution
to all inherent powers and sanctions of a court of law."
And
Section 22 of the Supreme Court Act
provides:
"22.
The Supreme Court may, from time to time, make any order necessary
for determining the real question in controversy in the appeal, and may
amend any defect or error in the record of appeal, and may direct the court
below to inquire into and certify its findings on any question which the
Supreme Court thinks fit to determine before final judgment in the appeal
and may make an interim order or grant any injunction which the court below
is authorized to make or grant and may direct any necessary inquiries or
accounts to be made or taken and generally shall have full jurisdiction over
the whole proceedings as if the proceedings had been instituted and
prosecuted in the Supreme Court as a court of first instance and may rehear
the case in whole or in part or may remit it to the court below for the
purpose of such rehearing or may give such other directions as to the manner
in which the court below shall deal with the case in accordance with the
powers of that court."
In view of the above
provisions, there can be no doubt that there is a plenitude of power
available to this Court to do which the justice of the case deserves. It
enables a court to grant consequential reliefs in the interest of justice
even where such have not been specifically claimed. Having held as I did
that the name of Amaechi was not substituted as provided by law, the
consequence is that he was the candidate of the P.D.P. for whom the party
campaigned in the April 2007 elections not Omehia and since P.D.P. was
declared to have won the said elections, Amaechi must be deemed the
candidate that won the election for the P.D.P.
In the eyes of the law, Omehia was never a candidate in the election
much less the winner. It is for
this reason that 1 on 25/10/2007 allowed
Amaechi's appeal and dismissed the cross-appeals. I accordingly declared
Amaechi the person entitled to be the Governor of Rivers State. I did not
nullify the election of 14/04/2007 as I never had cause to do so for the
reasons earlier given in this judgment.
I make no order as to costs.
Reasons for Judgement
Given by
Aloysius Iyorgyer
Katsina-Alu. J.S.C
On the 20th
October, 2007 I gave judgment in this appeal and indicated that I would give
my reasons today, and I now proceed to do so.
The Appellant herein Rt. Hon.
Chibuike Rotimi Amaechi was Plaintiff in the trial court. The Appellant
emerged as the candidate of the Peoples Democratic Party (hereinafter
referred to simply as "PDP") for Rivers State, at the Governorship Primaries
conducted by the PDF. The result of the Primaries shows that the Appellant
polled 6,527 votes out of a total of 6,575 votes. The second Respondent
Celestine Omehia did not contest at the primaries.
Pursuant to the primaries, the
PDP forwarded the Appellant's name to the Independent National Electoral
Commission (hereinafter referred to as INEC) as the Governorship candidate
for the State on 14 December 2006. INEC subsequently published the
Appellant's name as PDP candidate for the State. Soon
after, rumour became rife that the Appellant's name was about to be
substituted. The Appellant went to court to stop PDP from
substituting his name or disqualifying him except in accordance with the
provision of the Electoral Act.
Subsequently, on the 2nd
of February, 2007 the PDP sent the name of the 2nd Respondent
Celestine Omehia to the INEC as its Gubernatorial Candidate in substitution
for the Appellant. INEC effected the substitution. The reason for this
substitution was that the name of the Appellant was submitted in error. The
substitution was done during the pendency of the Appellant's suit.
In his amended Statement of
Claim, the Appellant claimed the following declarations and an order of
perpetual injunction:
i.
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 if the candidate is
disqualified by a Court Order.
ii.
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.
iii.
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).
iv.
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.
v.
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.
vi.
A declaration that there are no cogent and verifiable reasons for the
Defendant to change the name of the Plaintiff with that of the 2nd
defendant candidate of the People's Democratic Party (PDP) for the April,
13, 2007 Governorship Election in Rivers State.
vii.
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 of the Peoples Democratic party (PDF) for Rivers State in the
forthcoming Governorship Election in Rivers State, after the Plaintiff has
been duly nominated and sponsored by the People's Democratic Party as its
candidate and after the 1st Defendant has accepted the nomination
and sponsorship of the Plaintiff and 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.
viii.
An order of perpetual injunction restraining the defendants jointly
and severally by themselves, their agents, privies or assigns from changing
or substituting the name of the plaintiff as the River State Peoples
Democratic Party Governorship candidate for the April, 2007 Rivers State
Governorship 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 trial court found as a
fact that 3rd respondent could by cogent and verifiable reasons
substitute the 2nd Respondent for the Appellant and the
substitution was made within the 60 days stipulated in section 34(1) of the
Electoral Act, 2006. Although the trial court found as a fact that the
substitution was done within time and was in fact accepted by the INEC, it
however set aside the substitution on the ground that it was done during the
pendency of the suit.
The Appellant appealed to the
Court of Appeal against the decision while the Respondents cross-appealed.
When the appeal and cross-appeal came on on the 4th of
April, 2007 for hearing, the Court of Appeal on the prompting of counsel
observed as follows at p. 373 of the Records:
"Court:
It is the decision of this court and going by the doctrine of stare
decisis- judicial precedent that not wait for the
judgment of the Supreme Court on Section 34 of the Electoral Act - Since
that decision shall be law and applicability shall be binding on the parties
particularly political parties INEC. This court shall also base other
decision on any appeal involving section 34 on the decision of the Supreme
Court. This appeal shall be adjourned to the 11th of April 2007."
The decision of the Supreme
Court in
Ugwu v. Araraume
was delivered on 5th April, 2007 affirming the decision of the
Court of Appeal which had held that in view of section 34(1) and (2) of the
Electoral Act, 2006 any party wishing to substitute a candidate must give
cogent and verifiable reasons and that merely stating that a candidate's
name was "submitted in error" as was done in Araraume's case would not meet
the requirement of the law. Immediately this decision was given, the PDF
expelled the Appellant from the party for daring to take it to court.
It would be recalled that the
Court of Appeal indicated that it would await the decision of this court in
Ugwu v. Araraume.
Instead of allowing the appeal of the Appellant to be determined on the
outcome of the decision of this court in
Ugwu v. Araraume, the 2nd
Respondent Celestine Omehia brought a motion for an order dismissing the
appeal or otherwise striking out the appeal of the appellant on the ground
that the appeal had been overtaken by the event of expulsion of the
Appellant from the PDF. The motion was taken on 11th April 2007
and Ruling was reserved for 12th April, 2007. On the same date 11th
April 2007, the Federal Government declared 12th and 13th
public holidays. It then became practically impossible to have a ruling
until 16th day of April, 2007.
In the meantime election to
the office of Governor had taken place on 14/4/07. On 16th day of
April, 2007 even before the reserved ruling was read, the PDF made an oral
application urging the Court of Appeal to strike out the appeal on the
ground that election having taken place, the appeal of the Appellant had
become academic. In its ruling the Court of Appeal held thus:
"......... in view of the
reliefs being sought by the Appellant, this court has no jurisdiction to
adjudicate upon the appeal. All the issues in the substantive appeal and the
cross-appeals cease to be live and any consideration of them will not just
amount to mere expression of opinion, a moot debate and academics which
activities courts are precluded from engaging in, it will indeed be an
exercise in futility, a further waste of precious judicial time, energy and
resources."
The Appellant appealed against
the decision in SC.74/07 to this court upon a number of grounds.
This matter has come up for
hearing in this court for the third time. It first came up as SC.74/07
wherein this court allowed the appeal of the Appellant Rt. Hon. Rotimi
Chibuike Amaechi and ordered an expeditious hearing of the appeal and the
cross-appeal before the Court of Appeal.
Rather than hear the appeal as
directed by this Court, the Court of Appeal stayed further proceedings
before it. The Appellant appealed to this Court in SC. 126/07. This Court
re-stated its order that the appeal before the Court of Appeal be heard
expeditiously. The appeal was heard and judgment delivered on 20 July 2007.
The present appeal and cross-appeals are against that decision.
The main issue in this appeal
falls within a narrow compass. The issue is whether the instant case is
similar to the case of
Ugwu v. Araraume (2007)12 NWLR (Pt.
1048) 367 decided by this Court and if so whether the same
principle applies. Put differently: is the Court of Appeal bound by the
decision of this Court in the case of
Ugwu v. Araraume
(supra)?
The simple issue decided in
that case is that a political party wishing to substitute a candidate must
within 60 days give cogent and verifiable reasons to INEC for the
substitution sought. In Ugwu v.
Araraume (supra), this court decided that to offer the reason framed as
"error" for a change of candidate is not in compliance with section 34(2) of
the Electoral Act, 2006 which provides that:
"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 .."
In the present case,
the reason relied upon by the 3r respondent in substituting the
Appellant with the 2nd respondent is the word "error" without
more.
It is pertinent to relate here
what transpired at the Court of Appeal when this appeal came up for hearing
by that court. On that day i.e. 4th April, 2007, the Court of
Appeal in adjourning the matter stated thus:
"It is the decision of the
court and going by the doctrine of
stare decisis-judicial precedent that not (sic) wait for the judgment of
the Supreme Court on section 34 of the Electoral Act. Since that decision
shall be law and applicability shall be binding on the parties INEC. This
court shall also base their (sic) decision on any appeal involving section
34 on the decision of the Supreme Court. This appeal shall be adjourned to
the 11th April, 2007."
Essentially, the Court of
Appeal was saying that this case and
Araraume case are similar and the same principle applies. I agree
entirely.
Unfortunately, when this court
gave its decision in Ugwu v. Araraume
(supra), the Court of Appeal failed to proceed and enter judgment for the
Appellant. Sadly, that court began to dance to pedestrian tunes totally
irrelevant to the determination of the Appellant's case. I will explain.
The case of the Appellant
rested on the decision of this court that to offer the reason framed as
"error" for a change of candidate is not in compliance with section 34 of
the Electoral Act, 2006. This is so because the same reason given and relied
upon by the 3rd respondent in substituting the Appellant with the
2nd respondent is the word "error" without more. Under the
doctrine of stare decisis the
Court of Appeal was bound by the decision of this court. It was bound to
apply the decision of this court moreso when that court adjourned the
hearing of the appeal to abide the decision of this court. The Court of
Appeal had no option but to enter judgment in favour of the Appellant on 11th
April, 2007 the date to which the appeal was adjourned.
The Court of Appeal
regrettably busied itself with irrelevant issues, such as the EFCC
indictment of the Appellant and section 308 of the 1999 Constitution. On
these issues, I make the following observations:
Indictment by EFCC
The 3rd
respondent's letter to the 1st respondent applying to substitute
the Appellant with the 2nd respondent was dated 2 February 2007.
The Administrative Panel of Inquiry did not start sitting until 9 February
2007. The question is: How could INEC have acted on the supposed panel
report when the panel had not even started sitting as at the time of the
Appellant's substitution?
The EFCC's alleged list of
indicted persons, the Appellant included, was published on 22 February 2007,
twenty clear days after the Appellant had been substituted. Again the
question is: How could INEC have acted on a list that was not published as
at the time of the Appellant's substitution? It is to be observed that both
the alleged EFCC report and the Government White Paper were not before the
Court of Appeal. So, what informed the Court of Appeal's decision that the
Appellant was indicted. It is a matter of great
concern. I say no more except to hold that there was no indictment known to
law against the Appellant. He was not charged before any court. See the
decision of this court in SC.69/2007.
AC & Alhaji Atiku Abubakar v. Independent National Electoral Commission
(INEC) delivered on 29 June, 2007. In that case this court had this to
say:
"It has been argued for the
Defendant that its power to disqualify any candidate in the 2007 general
elections is derived from section 137(1) of the constitution which I have
already reproduced. The plaintiffs contend otherwise. I have read that
provision over and over again and I must say that there is no mention of the
defendant in the provision except (j) where the candidate has presented a
forged certificate to the Independent National Electoral Commission. The
defendant, I hold, in the circumstances, cannot claim that the power to
disqualify any candidate, the 2nd plaintiff inclusive, is
conferred on it by section 137(1). I am also unable to find anything in the
provision in the constitution that confers the power to disqualify
candidates on the defendant either expressly or by necessary implication.
It was also contended for the
defendant that the ground of disqualification in section 137(l)(i)
is self-executing. I am not impressed by this contention. I think a
dispassionate reading of the provision, will
reveal that it is not self-executing. To invoke against any candidate the
disqualification therein provided would require an inquiry as to whether the
tribunal or administrative panel that made the indictment is of the nature
or kind contemplated by section 137(i), read together with other relevant
provisions of the Constitution in particular section 36(i), which provides
that "in the determination of his civil rights and obligations, including
any question or determination by or against any government or authority, a
person shall be entitled to a fair hearing within a reasonable time by a
court or other tribunal established by law and constituted in such manner as
to secure its independence and impartiality" as well as the provision in
sub-section (5) of section 36 that "every person who is charged with a
criminal offence shall be presumed to be innocent until he is proved
guilty." The disqualification in section 137(l)(i) clearly involves a
deprivation of right and a presumption of guilt for embezzlement or fraud in
derogation of the safeguards in section 36(1) and (5) of the Constitution.
The trial and conviction by a court is the only constitutionally permitted
way to prove guilt and therefore the only ground for the imposition of
criminal punishment or penalty for the criminal offences of embezzlement or
fraud solely on the basis of an indictment for these offences by an
administrative panel of inquiry implies a presumption of guilt, contrary to
section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999.
I say again that conviction for offences and imposition of penalties and
punishments are matters appertaining exclusively to judicial poser:
see Sokefun v. Akinyemi (1981)1 NCLR 755; Garba v. University
ofMaiduguri (1986)1 NWLR (Pt. 18)550.
An indictment is no more than
an accusation. In Sokefun v. Akinyemi (supra) this court per
Fatayi Williams CJN said at page
146 as follows:
"It seems to me that once a
person is accused of a criminal offence, he must be tried in a court of law
where the complaints of his accusers can be ventilated in public and where
he would be sure of getting a fair hearing ........
No other Tribunal, investigating
Panel or Committee ........ If regulations
such as those under attack in this appeal were valid, the judicial power
could be wholly absorbed by the Commission (one of the organs of the
Executive branch of the State Government) and taken out of the hands of the
magistrates and judges ...... If judicial power
will certainly be eroded ..... The jurisdiction
and authority of the courts of this country cannot be usurped by either the
Executive or the Legislative branch of the Federal or State Government under
any guise or pretext whatsoever".
There is clearly no evidence
that the Appellant had been found guilty of any criminal offence by a court
of law justifying his exclusion from the election. I am troubled by the fact
that the Court of Appeal behaved as if it was not bound by the decisions of
this court. It proceeded nonchalantly and came to the conclusion that the
Appellant was indicted by the EFCC.
Section 308
The claim of the respondents
that section 308 inures to the benefit of the 2nd respondent has
no merit whatsoever. This is so because the wrong upon which the Appellant
based his claim had been in existence before the election. His case was
clearly a pre-election matter. It is also pertinent to observe at this stage
that at the time the 2nd respondent contested the election, his
substitution for the Appellant had been voided by the Federal High Court.
That decision was valid and subsisting until it was set aside on appeal. At
the time the election was held, that decision was not set aside and
therefore subsisting. It goes without any argument that the 2nd
respondent's participation in the election was clearly an illegal act. In my
judgment the 2nd respondent cannot be heard to contend that he
wants to enjoy the benefit of his illegality.
The Appellant, it must be
clearly seen, was not substituted in accordance with section 34 (2) of the
Electoral Act, 2006. He therefore remained the 3rd respondent's
nominated candidate for the Rivers State Governorship election held on 14
April 2007. In the eyes of the law, the Appellant's name earlier sent to
INEC was never withdrawn. Having come to this conclusion, what remains is
the type of order to be made. It must be borne in mind that this case is a
pre-election matter involving an intra-party dispute.
A petition as to who is
validly elected as Governor can only arise after an election, and in this
case, as I have already pointed out, the Appellant's case arose before the
election of 14 April 2007 involving an intra-party dispute and consequently
the Appellant could not go before an election tribunal to seek an order of
re-election. That apart, I think it would be absurd to cancel an entire
election conducted between several parties for the sole reason that there
was crisis within the winning party.
Additionally this court (i.e.
Supreme Court) has no jurisdiction to either cancel an election or order
fresh elections since it is not an Election Petition Tribunal as established
under sections 285 and 246 of the 1999 Constitution of the Federal Republic
of Nigeria. It is clear from the provisions of these sections of the 1999
Constitution that it is only an Election Petition Tribunal as well as the
Court of Appeal that have jurisdiction to hear and determine election
petitions. It is within their exclusive authority and power to order for
cancellation, annulment, or fresh elections as the case may be.
This case is not an election
matter. It is clearly a pre-election matter. The court was called upon to
decide who of the two candidates was PDP's nominated
candidate for the April election. As I have already held it is the
Appellant that was the PDP' s candidate for the
Governorship election. As for the order that I ought to make, I must say
that this court has wide jurisdiction to make consequential orders and to
grant reliefs which the circumstances and justice of a case dictate. On the
principle of Ubi jus ibi remedium if the court is satisfied that a
person has suffered a legal injury, it will surely provide a remedy
irrespective of the fact that no remedy is provided either at common law or
by statute. In Oyekanmi v. NEPA (2000) 15 NWLR (Pt.690)414
this Court per Onu JSC said at
p.444:
"On the principle of Ubi
jus Ibi Remedium; in Bello and 13
Others v. A.G. Oyo State (1986)5 NWLR (Pt 45) 828 at 890 this court per
Oputa, JSC held that if
from the facts available before the court it is satisfied:
(i)
that the defendant is under a duty to the
plaintiff;
(ii)
that there was a breach of that duty;
(iii)
that the defendant suffered legal injury;
(iv)
that the injury was not too remote,
it
will surely provide a remedy i.e. create one irrespective of the fact that
no remedy is provided either at common law or by statute."
In this case, it is an
incontestable fact that the 3rd respondent did not comply with
section 34(2) of the Electoral Act, 2006. The law is an equal dispenser of
justice and leaves no one without a remedy for his right.
It was for the above reasons
and for the comprehensive reasons given by my learned brother Oguntade JSC.
that I allowed the appeal of Rt. Hon. Rotimi
Chibuike Amaechi and dismissed the cross-appeals and ordered that he be
sworn in forthwith as the Governor of Rivers State on 25 October, 2007.
Reasons for Judgement
Given by
Dahiru Musdapher.
J.S.C.
On the 25th day of
October, 2007, this appeal and the two cross-appeals were heard and
determined by this court I allowed the appeal and dismissed the two cross -
appeals on that date, 1 indicated then that I would give the reasons for my
judgment today, the 18/1/2008.
I proceed lo do so now I have
seen before now, the Reasons for Judgment just delivered by my learned
brother, Oguntade .J.SC. I entirely agree with him and only want to express
my opinion on some of the issues if only for the sake of emphasis.
In the aforesaid Reasons for
Judgment, his Lordship has exhaustively and meticulously recounted the
relevant facts and I do not need to repeat them here except where I find it
necessary in order to make my opinions clearer.
The court below in its
judgment delivered the 20/7/2007, the subject matter of this appeal and
cross appeals reached the following conclusions;
1.
That the facts in the instant case were distinguishable from those in
Ugwu VS.
Arrtaume 120071 6 SC (Part)
88 in this Amaechi”s indictment was pleaded by INEC in paragraph 7 of
its Statement of Defence.
2.
That Amaechi's name was properly substituted with that of Omehiua
3.
That the Cross-Appeal was partially meritorious.
Dissatisfied -with the
judgment of the court below, the appellant herein brought this appeal while
the 2nd and 3rd Respondents also filed cross-appeal.
Now, the issues formulated for
the determination of the main appeal read this:-
"1.
Whether the Court of Appeal was not in error in allowing fresh
evidence on appeal when no exceptional circumstance was shown to warrant
such admission.
2.
Whether having regard to the undertaking before the court, the court
below ought not have followed the decision of the
Supreme Court in
Ugwu vs.
Araraume
(supra)?
3.
Whether there exists cogent and verifiable reasons to warrant the
substitution of the appellant's name with that of any other person in breach
of Section 34 of the Electoral Act, 2006 and if not whether the purported
substitution of the appellant's name is not null and void.
4.
Whether IN EC (1st Respondent) can rely on extraneous
facts or any facts not presented by a political party seeking substitution
to verify reasons given seeking substitution.
5.
Whether there was in existence on indictment of the Appellant for
same to be used as a basis to verify the reasons of error given by the 3rd
respondent for seeking the substitution of the Appellant's name.
6.
Whether having regard to the concept of
lispendejns and the
fact that at the material time of the election, appellant being the only
lawful candidate of the PDF, he ought not be declared the winner of 14th
April, 2007 gubernatorial elections in Rivers State."
The first and second
respondents more or less submitted the same issues for the determination of
the appeal. The 2nd respondent however included issues which are
not covered by the appellant's issues. The three extra issues read:-
"(a)
Granted that this Honourable Court has affirmed the jusliciability of
Section 34 of the Electoral Act in
Ugwu vs. Araraume
(supra), which the court below has followed in this instant appeal, assuming
(but not conceding that there has been a breach of
section 34 of the Electoral Act) are there limit to remedies (if any)
available to the Appellant ?
(b)
Whether the entire appeal is not academic or overtaken by events as a
result of the combination of events, to wit, the unchallenged dismissal of
the appellant from the fold of the PDP, the fact that the elections in issue
have been held in which several other political parties participated, the
declaration of the 2nd respondent as winner of the said
governorship election and his being sworn in, the existence of (he
appellant's election petition and other petitions in
the Rivers State Governorship
Election Tribunal?
20.
Whether the appellant's exercise of his access to court in the
challenge of the alleged breaches of perceived rights in any derogates from
the constitutional powers given to 1st respondent to conduct
elections under the 1999 constitution and Electoral Act and if so whether
the Supreme Court can at this point in time venture into a declaration of
who is the winner of the governorship election in Rivers State?
As mentioned above, the 2nd
respondent Omehia filed a cross -Appeal.
He submitted the following three issues for the determination of the
Cross appeal:-
"1.
Whether the Court of Appeal was correct when it held that the appeal
in issue did not abate upon the 2nd respondent being sworn in as
the Governor of Rivers State whereupon he acquires Constitutional immunity
pursuant to Section 308 of the 1999 Constitution.
2.
Whether the Court of Appeal was correct in law after finding that the
entire gamut of appellant's dispute arose from nomination and sponsorship
(matter within the domestic sphere of the 3rd respondent, it did
not rule the entire dispute non-Justiciable.
3.
Whether the proceedings were void Ab
Initio on the basis that
evidence Viva Voce was not taken in a suit Commenced by writ of
summons/statement of claim in respect of reliefs that were all declaratory
in nature?"
Now in respect of its cross
appeal the third respondent has formulated and submitted the following issue
for the determination of the cross appeal:-
"Whether the court below was
right in law to hold that the appeal before it was an election related
matter and having so held went further to hold that the 2nd
respondent was not entitled to enjoy the benefits of the immunity conferred
on him by virtue of section 308 of
the constitution of the Federal Republic of Nigeria 1999 having taken
the oath of office and the oath of allegiance as the Governor of Rivers
State and pleading reliance on the Cases
Ad vs. Fayosk |2004| 8 NWLR (Pt. 876)
639 and
Obih vs. Mbakwe
|1984|
1 SCNLR 192 to arrive at
this conclusion”
In my view the crucial and
fundamental issue to be decided in these appeals is whether or not the two
courts below were correct in their conclusions that the reasons given by the
3rd respondent herein PDP for substituting the appellant with the
2nd respondent satisfied the requirements of
section 34 of the Electoral Act, 2006. The said section provides:-
"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.”
Now, there is no dispute
whatever and it is common ground that the appellant amongst other candidates
vied for the primary gubernatorial elections held and conducted by the 3rd
respondent P.D.P. It is not also disputed that he overwhelmingly won the
primary election. There is also no dispute whatsoever that on the
14/12/2006, the P.D.P sent the name of the appellant as its candidate for
the scheduled gubernatorial election to the 1st respondent, INEC.
It is also not disputed that 1NEC verified and published the name of the
appellant as the candidate of the P.D.P in the scheduled gubernatorial
elections in the
"Barrister Celestine Ngozichim
Omchia substitutes Lion. Rotimi Amacchi whose name was
submitted in error."
It is not also in dispute that
the 2nd respondent did not even take part nor submit himself as a
candidate for the primary gubernatorial elections held by the 3rd
respondent, P.D.P.
The court below in the lead
judgment at page 649 of the printed record stated thus:-
"I have carefully considered
the submission of the learned senior counsel for the parties. 1 have no
doubt in my mind that the main grouse of the appellant which is the bone of
contention in this appeal is the interpretation of section 34(1) and (2) as
it is applicable to the substitution of the appellant in this case with the
2nd Rcspondent/Cross-appellant based on Exhibit D a letter dated
2nd February, 2007 acted upon by the 1st Respondent
Cross-appellant ..............”
Now, this court in the
Araraume's ease supra considered and decided that the reason of "error" did
not satisfy the requirements of section 34 of the Electoral Act, 2006. NIKI
TOB! JSC in that ease at page 134 observed:-
" ..................... The
subsection provides that there must be a cogent
and verifiable reasons for the substitution on the part of the 3Ki
respondent. This places a burden on the 3ld respondent not only
to provide reasons but such reasons must be cogent and verifiable
...................."
I note that all the justices
of this Court unanimously agreed, that on a true construction of section
34 of Electoral Act,
2006 , that no reason was given for the
substitution "not to talk of the cogency and verifiability of the reasons".
It was also unanimously agreed, that a political party must ensure intra
party democracy and abide by the provisions of its constitution on the
emergence of its candidate after primary elections. Oguntade JSC put it
thus:-
"............ If a political
party was not bound by the provisions of its constitution concerning party
primaries, why should there be the need to send members of the parties
aspiring to be candidates for electoral offices on a wild goose chase upon
which they dissipate their resources and waste lime."
Democracy's world is rich and
multifaceted. Democracy should not be viewed from a one dimensional vantage
point. Democracy is multidimensional. It is based both on the centrality of
laws and democratic values, and, at their center, human rights. Indeed
democracy is based on every individual's enjoyment of rights of which even
the majority cannot deny him simply because the power of the majority is in
its hands.
Roland Dworkin
in
A Bill of Rights For Britain 1990, Pages
35
- 36 stated.
"....... true democracy is not
just statistical democracy, in which anything, a majority or plurality wants
is legitimate for that reason, but communal democracy, in which majority
decision is legitimate only when it is a majority decision within a
community of equals. That means not only that every one must be allowed to
participate in polities as an equal through the vote and though freedom of
speech and protest, but that political decisions must treat every one with
equal concern and respect, that each individual person must be guaranteed
fundamental civil and political rights no combination of other citizens can
take away, no matter how numerous they are or how much they despise his or
her race or morals or way of life."
I entirely agree, that the
decision of the court in Dalhatl v.
Turaki |2003| 7 SC 1 and Onuoiia
v. R.b.k. Okafor 11983] SC
NLR 244 could no longer
apply.
In the
Onuoha v. Okafor case,
it was decided that upon the construction of
the Electoral Act 1982, (1) the
right freely to choose a candidate it will sponsor for election to any
elective office is reserved to the political party to do as it pleases (2)
the exercise of this right of a political party is a democratic affair over
which (he court has no jurisdiction and (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.
Indeed in the
Dalhatu
Vs. Turaki case supra at 347 of the report.
Tobi JSC statcd:-
"From the decision of this
court in Onuoha, it is clear that the right to sponsor a candidate by a
party is not a legal right but a domestic right of the party which cannot be
questioned in a court of law. The political organization has a discretion in
the matter, a discretion which is-unbelted in the sense that a court of law
has no jurisdiction to question its exercise one way or the other. The
moment a court goes into such a domestic affair of a party, it has involved
itself in nominating a particular candidate, a jurisdiction which a court
cannot exercise."
As shown above, the decision
was based on the provisions of the
Electoral Act 1982 which did not contain the provisions as contained
under Section 34 of the Electoral
Act, 2006. It is very clear that the cases
of
Dalhatu v Turaki and
Onuoha v. Okafor supra arc
no longer applicable. Under the provisions of Section 34 of the Electoral
Act 2006, a political party has no longer the right to substitute a
candidate to an elective office without fulfilling certain conditions. The
right has been curtailed by time and reason. In the instant case, which is
on all fours with the Araraume's case, the 3rd respondent has no
right to substitute the appellant with the 2nd respondent since
the reason of "error" given did not satisfy and could not satisfy the
provisions of section 34 of the
Electoral Act 2006.
When this appeal came before
the lower court on the 4/4/2007, learned counsel for the respondents'
requested that since the case of
Ugwu vs. Araraume
would come up for hearing on the 5th of April 2007 before
the Supreme Court and bearing in mind the identical nature of the facts of
the Araraume and this case the lower court ruled at page 373 -374 of the
printed record thus:-
"Court:
It is the decision of this court and going by the doctrine of stare
decisions - judicial precedent - that not to wait for the Judgment of the
Supreme Court on Section 34 of the
Electoral Act - since that decision shall be law and applicability shall
be binding on the parties particularly political parties INUC. This Court
shall also base other decision on any appeal involving section 34 on the
decision of the Supreme Court. This appeal shall be adjourned to the 11th
day of April, 2007."
One would have thought that
when the Supreme Court delivered its decision on the Araraume's Case the
Court of Appeal would simply apply the decision to the identical facts in
the instant case.
Having decided to follow the
decision in the Araraum”s case on the 4/4/2007 as reproduced above, the
Court of Appeal had no jurisdiction for it to turn, as it were, summersault
and refuse to follow the guiding principles it set itself to follow. See
Oykykmi v. Iuowole Local Government
[1993] I NWLR (PT 270) 462.
The reasons given by the court
below in not following the decision of this court in the Araraume case are
in any event untenable. The facts arc identical indeed the instant case is
stronger than that of Araraume, whereas Engineer Ugwu contested the primary
gubernatorial elections, Omehia, the 2nd respondent herein was
not a candidate at P.D.P primary elections for the gubernatorial elections
in
The P.D.P as a party under the
provisions of Section 34 of the [Electoral Act would have no power or
justifiable reason to simply drop the appellant and pick the 2nd
respondent as its candidate for the gubernatorial elections in the Rivers
State of Nigeria .I accordingly hold that the substitution of the appellant
for the 2nd respondent as the candidate of the P.D.P for the
gubernatorial elections held in the Rivers State in 14/4/2007 was not done
in accordance with the requirement of section 34 of the Electoral Act, 2006
and was therefore irregular null and void. I accordingly set aside the
decision of the Court of Appeal on this , issue.
On the
issue of the cross - appeals specifically with reference to
section 308 of the 1999 Constitution.
I agree with the court below when it stated:-
"The cases cited by the
Learned Senior Counsel for the 2nd respondent are easily
distinguishable from the case in hand.
For the case of
Attorney-General Of The Federation
v. Alhaji Atuku Abubakar & I
other, affects a Criminal proceeding,
Global Communications v. Donald
Duke affects a
civil proceeding in which the governor sued another person and the court
held that the immunity granted by section 308 does not include his ability
to sue other people.
Ummanah v. Atta
which affects an election matter is not on all fours with this case
in hand. I hold that the provision of
section 308 is only applicable to ordinary civil proceedings and
criminal proceedings and not in election related matters.
In this case the subject
matter queries the foundation of his appointment as governor. If the
governor is said to be immune under
section 308 of the Constitution the resultant effect is that once a
person is declared and sworn in as governor - elect that ends the matter and
no one can complain or take any legal action even if the person conducted
gross election malpractices.
In the
case of AD v.
Fayose 2004 8 NWLR (Pt 876)
639 at 653
D.g.
It was observed
that such decision will encourage gross wrongful and illegal activities
among the parties contesting for the position and negative the spirit and
necessary intendment of the Constitution and hence destroy democracy.
On that score I hold that an in election related matter where the
status of the 2nd respondent as governor is being challenged, the
immunity conferred on him by the Constitution is equally in question.
The 2nd respondent cross-appellant docs not enjoy any
immunity from being sued in the suit.
Obi v.
Mbakwe 1984 1 SC NLR 192, Unongo
v. Aku 1985
6 NCLR 262.
"
I agree that the suit in this
action is an election related matter and even though it is not an election
petition matter, yet it is a matter directly dealing with the process of
becoming a governor. It is clearly a pre-election matter which arose before
the election and clearly part of the processes of electing a governor. It is
very clear to me that section 308 of
the Constitution does not protect a governor from legal proceedings in a
matter of his election per
se or in a matter connected with the election even when he as a contestant
has been declared duly elected or returned as governor. Election petitions
and election related proceedings are special proceedings divorced and
separated from civil or criminal proceedings within the intendment and
context of section 308 of the
Constitution. Sec
Onitiri v.
Benson 1960 5 FSC I,
Oyekan v. Akinjide [1965|
NJV1LR381.
In the
case of Obih v.
Mbakwe supra at page 205.
It was held:-
"It is the declared aim and
purpose of the xxxx Constitution that every state in the Federation shall
have a Governor as Chief Executive who is democratically elected. It is also
the declared purpose of the Constitution that the validity of the election
[or the nomination and the entire electoral process as [mine] to the office
shall be clear and transparent to all and if questioned the validity is to
be finally decided by the competent (Tribunal) .........
The ....... Constitution forbids the governance of the Federal
Republic of Nigeria or any slate thereof by any person not validly
elected, ...........".
The processes leading to the
election are not only justiciable at the instance of any party aggrieved in
the process but the immunity under
section 308 of the Constitution cannot avail a governor since the
immunity is not within the contemplation of such proceedings.
The
other issue is that whether section 285(2) of the Constitution deprives this
court and the other two lower courts the jurisdiction to entertain the
dispute herein. This is clearly not an election petition within the meaning
of section 285 of the Constitution. It is not a case dealing with the
conduct of the election but it is a pre- election matter in which the
ordinary courts of the land have an undoubted jurisdiction to adjudicate in
pre- election matter or matters not connected with the conduct of the
election. The suit herein is not affected by sections 198(2) and 285(2) of
the Constitution. 1 accordingly dismisses the Cross - appeals as they are
unmeritorious.
I now consider briefly the
relief granted to the appellant. By his statement of Claim, the sum total of
the reliefs sought by the appellant before the trial court was that he be
pronounced as the P.D.P gubernatorial candidate for the election scheduled
for April, 2007 and that both the 1st and 3rd
respondents herein have no reason under the Electoral Act 2006 to substitute
him for the 2nd respondent. It has now been decided by this Court
that he was entitled to the relief he sought. Yet the 1st
respondent proceeded to conduct the gubernatorial election before a decision
was reached.
Now, in the reliefs sought by
the appellant in his notice of appeal the appellant applied to this court
for the following prayers amongst others:-
"A
An Order declaring that the alleged substitution of the
plaintiff/appellant's name with that of the second respondent was unlawful,
null and void.
B.
An Order declaring that it was the plaintiff/ appellant who was 3rd
defendant/respondent's candidate at the 14th of April, 2007
governorship election in Rivers State.
As shown above, the appellant
has won his case and in my view he is entitled to the reliefs he sought in
his Notice of Appeal. In the interest of justice and fair play, this court
cannot shy away from doing substantial justice without any undue regard to
technicalities. In my view, there is no doubt that it was the appellant and
not the 2nd respondent who was the P.D.P candidate for the 2007
gubernatorial elections in the
Again, having held that the
appellant was in law the P.D.P. candidate for the 2007 gubernatorial
elections in Rivers Stale, this court has the duty being the final court of
the land, to ensure that the determination of eases on appeal to it is
reached on the merits of the question in controversy between the parties
which resulted in the litigation. This court has very wide powers to do
substantial justice without undue regard to technicalities. Prom the facts
of this case, this court has the power and the duty to invoke section 22 of
the Supreme Court Act 1990, even if no such relief was sought by the
appellant to grant him such relief that will completely determine all the
issues arising for enforcement of the judgment won by the appellant. See
also Order 8 of the Supreme Court Rules particularly Rules 12(2) and 12(5) -
See the case of CGC (Nig)
Ltd
v. Ogu (2005) FWLR
(pt.261) 202, Adeleke v.
Cole (I96I) 1 All NLR 55; Ode V. The Diocese of Ibadan (1966) 1 ALL NLR
287, Obiyan v.
Military Governor of Midwest
( 1972)
1 ALL NLR 422
Chief Ajagun.jeun v. Osho (1977)
5 SC 89.
The real question in
controversy in this appeal, in my view is, whether, the appellant was the
lawful candidate for the P.D.P in the April 2007 gubernatorial elections or
not.
The relief granted to the
appellant even if not asked could under the circumstances of the facts of
this case amount to a consequential relief. It is the law even where a
person has not specifically asked for a relief from a court the court has
the power to grant such a relief as a consequential relief. A consequential
order must be one made giving effect to the judgment which it follows. It is
not an order made subsequent to a judgment, which derails from the judgment
or contains extraneous matters. It is settled law that court can order an
injunction even where it is not specifically claimed but appears
incidentally necessary to protect established rights. Sec
Atolagbe v. Sharun (1985) 4
SC (Pt 1) 250, Okupe
v.
F.B.I.R. (1974) 1
NMLR 422, Uman v.
Mohammed
(1999) 9 NWLR
(Pt 617) 116 in which ease
at page 143, Achike JSC staled on the issue whether the respondent in that
case based on the facts was not entitled to any remedy:-
"The conclusion should not
erroneously be taken to mean that this court docs not frown on the
diabolical dishonesty and fraud, as found by the trial court, perpetrated by
the appellant on the unsuspecting respondent nor is it to be said that the
position of the defrauded respondent though hapless is hopeless, I am
clearly of the view, that quite on the contrary, the laws of this country
arc not bereft of remedy to meet such circumstances posed in this case where
the appellant unabashedly engages in the unwholesome acts xxxxxx to the
chagrin of innocent contracting party. Thank God the apex court in the land
cannot remain emasculated to redress such overreaching misconduct of the
appellant, if the monumental decision of the Supreme Court in
Similarly under the undoubted
facts of this case and the judgment arrived at in this case, this court must
rise lo the occasion and since the laws are not bereft of remedy to meet
such circumstances lo grant the relief sought by the appellant in his notice
of appeal.
One may perhaps ask, why do i
not order that fresh elections be held with the appellant as the P.D.P
candidate? My short answer to the question is that this court has no
constitutional competence to order a fresh election. It must be understood,
that this court was not seized of this matter as an election petition,
though admittedly an election related matter or a pre election matter.
Section 285(2) of the Constitution
established the Governorship and Legislative Houses Election Tribunals
"which shall to the exclusion of any Court or Tribunal have original
jurisdiction to hear and determine petition as to whether any person has
been validly elected to the office of the Governor or Deputy Governor or as
a member of any legislative house This jurisdiction clearly deals with the
conduct of the elections on which a petition may be based as provided for
under Electoral Act.
This jurisdiction is exclusive
to the Tribunals established and is not within the competence of the
ordinary courts established under section 6 of the Constitution. In any
event by section 246 (3) of
Constitution, the Court of Appeal is the final adjudicator in appeals
emanating from such tribunals established under section
285 of the Constitution. So
clearly, in my view, the Supreme Court would have no jurisdiction or
competence to order a fresh election. To do so would have been unlawful for
we could not dabble into the matter which was not before us, moreover the
other parties who contested the election arc not parties before us and that
the conduct of the election was not an issue before the Supreme Court. The
only issue before this court was whether the appellant was the proper and
lawful candidate of the P.D.P at the April gubernatorial elections for
Rivers Stale and which this court duly decided. This is simply a dispute
between two party members as to who between the two of them was the
candidate for the party. It has nothing to do with the conduct of the
election which issue is not within the competence and the jurisdiction of
the Supreme Court. This court has no jurisdiction to nullify the elections
held in April, as a mailer of fact, there was no prayer to that effect.
Having held that the appellant
was not legally substituted for the 2nd respondent, the appellant
remained the candidate of the 3rd respondent in the elections. It
is for these reasons and the Reasons For Judgment of my Lord Oguntade, JSC
aforesaid, that I on the 25/10/2007, allowed the appellant's appeal and
dismissed the cross-appeals. I accordingly declared the appellant the P.D.P.
candidate for the gubernatorial elections of
Reasons for Judgement
Given by
Mahmud Mohammed.
J.S.C.
On Thursday 25th
day of October, 2007, this appeal and the cross-appeals were heard by this
court and in a unanimous decision delivered the same day, the Appellant's
appeal was allowed and the judgment of the court below was set aside while
the 2nd and 3rd Respondents Cross-Appeals were
dismissed.
On that day I pronounced my judgment
allowing the Appeal and dismissing the Cross-Appeals and further stated that
I shall give my reasons for doing so today. I now proceed to do so.
Before proceeding to give my
reasons, I wish to state that I have had the privilege before today of
reading the reasons, for judgment just given by my learned brother Oguntade,
JSC. I entirely agree with the manner he handled and resolved the
preliminary objections to the hearing of the appeal and the Cross-Appeals
including all the issues arising in the matter as presented by the learned
Senior Counsel for the Appellant and the Respondents respectively.
The dispute between the
parties in this matter arose out of the preparations being made for the
conduct of the Governorship election in the country then scheduled for
14/4/2007. As part of the preparation for that election, the Peoples
Democratic Party (PDP) which is the 3rd Respondent^
Cross-Appellant in this matter, conducted primary election in accordance
with its own constitution and the electoral guidelines for the election in
Rivers State with the aim of producing a candidate to contest with other
candidates of other political parties the seat of the Governor of Rivers
State. Rt. Hon. Chibuike Rotimi
Amaechi, the Appellant in this matter, emerged the winner in
the primary election scoring over whelming victory over the other
contestants. Following this victory, the name of the Appellant was forwarded
by the 3rd Respondent to the Independent National Electoral
Commission (INEC), the 1st Respondent as its candidate to contest
the Governorship election in Rivers State under the platform of the Peoples
Democratic Party (PDF). In compliance with the requirement of the Electoral
Act, 2006, the 1st Respondent, Independent National Electoral
Commission (INEC), duly published the name and particulars of the Appellant
along with the names and particulars of other candidates contesting the
election in the constituency.
However, long after submitting
the name of the Appellant to the 1st Respondent, the 3rd
Respondent wrote another letter to the 1st Respondent forwarding
the name of the 2nd Respondent Barrister Celestine Ngozichukwu
Omehia who did not even participate in the party's primaries, as its
candidate for the Governorship election in Rivers State, stating that the
name of the Appellant earlier sent, was done in error. Following this
development, the Appellant rushed to the Federal High Court, Abuja and took
out a writ of summons on 26/1/2007, initially against the 1st
Respondent but later by order of court, joined the 2nd and 3rd
Respondents to the action as Defendants
and
claimed the following reliefs:-
"(i.)
A declaration that the option of changing
or substituting a candidate whose name is already submitted to INEC by a
political party and/or the Independent National Electoral Commission (INEC)
under the Electoral Act, 2006, only if the candidate is disqualified by a
Court order.
(ii.)
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 of the Electoral Act,
2006.
(iii.)
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 candidates political party has done its own
screening and submitted the name of the Plaintiff or any candidate to the
Independent National Electoral Commission (INEC).
(iv.)
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.
(v.)
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 (sic)
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.
(vi.)
A declaration that there are no cogent and verifiable reasons for the
Defendant to change the name of the plaintiff with that of the 2nd
defendant candidate of the Peoples Democratic Party (PDP) for the April
(sic) 13, 2007 Governorship Election in Rivers State.
(vii.)
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 of Peoples Democratic Party (PDP) for Rivers State in the
forthcoming Governorship Election in Rivers 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 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.
(viii.)
An order of perpetual injunction restraining the defendants jointly
and severally by themselves, their agents, privies or assigns from changing
or substituting the name of the Plaintiff as the Rivers State Peoples
Democratic Party Governorship candidate for the April, 2007 Rivers State
Governorship Election unless and 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 trial court after hearing
the parties and admitting in evidence various documents as Exhibits A, B, C,
D, E and F, delivered its judgment on 15/3/2007. The relevant part of this
judgment, as far as the appeal and the cross-appeals in this matter are
concerned, reads:-
"The crux of the Plaintiffs
case is that as at 2nd February, 2007, when this Exhibit D was
written this case was subjudice and that even if the 2nd and 3rd
Defendants were not parties in. the suit then the 1st Defendant
was and (sic) he was bound not to act on the said exhibit D so as to
preserve the Res of litigation
Secondly, that the said
exhibit D has not given any cogent and verifiable reason for the
substitution and that two conditions go together
and questioning what the particulars of the error are?
This really is the bone of
contention. The Defendants have
said that error means mistake and there cannot be any particulars of a
mistake otherwise it would not be a mistake.
I have interpreted Section
34(1) and (2) of the Electoral Act above.
I do not agree that error cannot have particulars. It must certainly
can. But error is an objective which by itself is self explanatory. It
connotes mistake.
The said exhibit D gives only
a reason which ought to be verifiable. But as held in the in the case of
Senator Ifeanyi Ararume Vs INEC & Ors unreported FHC/ABJ/CS/9/07 of 16th
February, 2007, if the letter falls short of particulars of error it
is the responsibility of Independent National Electoral Commission to ask
for better particulars.
I believe that the framers of
the law particularly want Independent National Electoral Commission to be
able to verify or confirm the reason proffered for the intention to
substitute. If however Independent National Electoral Commission is able to
verify the reason from reason 'error', then I don't see how the court can
question their verification or acceptance of the substitution.
No matter how it is couched
the final say as to whom a political party sponsors for an election is their
ultimate decision. When they run foul of the procedure the remedy is not for
the court to substitute a candidate for it.
"No. its folly will be in not
fielding a candidate at all."
Independent National Electoral
Commission has not told us that they were not able to verify the cogent
reason of error given to it by the Defendant for wanting to substitute its
candidate. That the Plaintiff's name was in same indicted list is not before
the court and I shall refrain from touching on that extensive issue.
On independent National
Electoral Commission acting on exhibit D while the case is subjudice, I find
that it is repremandable act and the proper thing to have done is await the
outcome of the suit and on the authority of the case of Ojukwu Vs
Government of Lagos State, any action done pursuant to Exhibit D while
this case is subjudice is hereby set aside.
The only time the court will
interfare with the candidates of political party by virtue of section 34(1)
and (2) is when the procedure is not complied with.
Consequent upon all the above
and all the' reasons and conclusions in the case of Senator I. Ararume
(supra) 1 can only find that .the submission of the name of the 2nd
Defendant in replacement for the plaintiff was done within time.
Secondly, any action taken by
the 1st Defendant pursuant to exhibit D while this Case is
subjudice is set aside.
Thirdly, Independent National
Electoral Commission has the responsibility to verify the reason given to it
by a political party for wanting to change or substitute its candidate for
another and if they require more particulars to verify it is for it to ask
for more particulars and not for the court.
On the
whole.
Prayer
1,
declared to the contrary.
Prayer 2,
deals with false information in an affidavit and not with
substitution of a candidate not the issue before the court.
Prayer 3,
appears abandoned.
Prayer 4,
is declared to the contrary.
Prayer 5,
deal with Section 32 of the Electoral Act which was not issues before
the court. ;
Prayer 6,
there is cogent reason given by the Defendant for wanting to
substitute its candidate and only the 1st Defendant can determine
if it is verifiable or not.
Prayer 7,
the 1st and 3rd Defendants have
the right to change its candidate within 60 days to election in compliance
with the Provisions of Electoral Act.
Prayer 8,
the Court cannot grant such an Order if and where the Defendants have
complied with the laid down procedure for substitution of candidate by
virtue of Section 34(1) and (2) of the Electoral Act."
Let me observe at this stage
that one of the positive Orders of the trial Court in its judgment is the
setting aside of any action taken by Independent National Electoral
Commission (INEC), the 1st Respondent, on the Peoples Democratic
Party's (P.D.P) 3rd Respondent's letter of substitution Exhibit
D, against which the Respondents had cross-appealed to the Court of appeal,
remained in full force until it was set aside by the Court of Appeal in its
judgment delivered on 20th My, 2007, more than three months after
the Governorship Election conducted on 14th April, 2007. I shall
deal with the effect of this situation later in my reasons for the judgment.
It is not surprising therefore
that all the parties before the trial Court were not satisfied with the
judgment resulting in the Plaintiff appealing against it, while the
Defendants also challenged part of the judgment in their respective
cross-appeals. However, while the Appeal
and the
cross-appeals
were
awaiting hearing
and determination, the Appellant was expelled from the P.D.P the 3rd
Respondent, which then together with the 2nd Respondent
Celestine Omehia, brought an application urging the Court of Appeal to
strike out the matter as the Appellant no longer had locus
standi to prosecute it. The matter was accordingly struck-out.
The parties were again dissatisfied with the decision of the Court of
Appeal resulting in an appeal by the Appellant and cross-appeals by the
Respondents against the decision to this Court which after hearing the
parties, allowed the appeal and remitted the case to the Court of Appeal for
expeditious hearing of the appeal and the cross-appeals.
This order was not
complied with by the Court of Appeal because the
matter found its way back to this Court again on the flimsy excuse that the
earlier judgment of this Court directing the expeditious hearing of the
appeal and the cross-appeals was not clear.
However, on a further directive by this Court to the Court of Appeal
to hear and determine the matter immediately, the Appellant's appeal and the
Respondents cross-appeals were only heard. Meanwhile, it is worth mentioning
at this stage that before die matter could be heard by the Court of Appeal.
Governorship Elections scheduled for 14th April, 2007 had already
been conducted in the country including the Rivers State where Celestine
Omehia, the 2nd Respondent was sworn in as Governor of the State
on 29th May, 2007. In its judgment delivered on 20th
July, 2007, the Court of Appeal in a unanimous decision, dismissed the
Appellant's appeal and allowed in part, the Respondents cross-appeals.
Dissatisfied with this judgment the Appellant has appealed against it while
Celestine Omehia and Peoples Democratic Party (P.D.P) the 2nd and
3rd Respondents, have also filed cross-appeals against it. In
addition, the Independent National Electoral Commission (INEC) which is the
1st Respondent in this Court and Celestine Omehia, the 2nd
Respondent, have separately filed their Notices
of Preliminary Objection. Before the matter came up for hearing on 25^
October, 2007, relevant appropriate briefs of arguments comprising
Appellants brief, Respondents' briefs, Appellant's Reply brief,
Cross-Appellants' briefs and Cross-Respondents' briefs of argument were duly
filed and served. In the Appellant's brief of argument, six issues have been
identified for the determination of die appeal.
They are –
"(1.)
Whether the Court of Appeal was not in error in allowing fresh
evidence on appeal when no exceptional
circumstance was shown to warrant such
admission.?
(2.)
Whether having regard to the undertaking before the Court the Court
below ought not to have followed the decision of the Supreme Court in
Ugwu v. Araraume (supra)?
(3.)
Whether there exists cogent and verifiable
reason to warrant the substitution of Plaintiff's name with that of any
other person in breach of Section 34 of the Electoral Act, 2006 and if not,
whether the purported substitution of the Plaintiff's name is not null and
void?
(4.)
Whether INEC, (1stRespondent) can rely on extraneous fact
or any fact not presented by a political party seeking substitution to
verify reason given for seeking substitution?
(5.)
Whether there was in existence any indictment of the Plaintiff for
same to be used as a basis to verify the reason or error given by the
3rd Respondent for seeking substitution of Plaintiff's name?
(6.)
Whether having regard ; to the concept of lispendens and
the fact that at the material time of the election, Plaintiff being the only
lawful candidate of the Peoples Democratic Party, he ought not to be
declared the winner of 14th April, 2007 general election in
Rivers State?"
In the brief of argument filed
for the 1st Respondent however, the following four issues were
formulated.
"1.
Was the Court of Appeal bounded by itself
and bound to apply by the decision in Ugwu v, Araraume
(2007) 12 N.WX.R.
(Pt. 1048) 367 in the event of subsequent
distinguishable features and circumstances? (Ground 1)
2.
Whether the Court of Appeal was right in refusing to declare the
Appellant as the winner of the Rivers State Governorship election of 14th
April, 2007 (Ground 2)
;
3.
Whether the Court of Appeal was right in allowing the application of
the 1st Respondent for further evidence on appeal, admitting copy
of Ruling in FHC/ABJ/CS/74/207 and was it held to operate as indictment of
Appellant (Grounds 3,10,14 and 15).
4.
Was the Court of Appeal right hi holding that this case is
distinguishable from the case of Ugwu v. Araraume (supra),
in coming to the Conclusion that the Appellant was properly substituted
in accordance with the provisions of
Section 34(1) and (2) of the Electoral Act 2006.
(Grounds 4, 5, 6, 7, 8, 9 11,12 and 13)."
The 2nd
Respondent's brief of argument on the other hand like the appellant's brief,
six issues for the determination of the appeal were identified. They are –
"17.
Whether additional evidence of indictment admitted by the Court of
Appeal is proper in the circumstances and relevant to determination of the
propriety of the process of substitution challenged herein by the Appellant?
(issue No.1)
18.
Having regard to the peculiar facts and circumstances of this appeal,
whether the Court of Appeal was right in her findings that the provisions of
Section 34 of the Electoral Act
have been complied with in this instance and that there was proper
substitution of the Appellant as Governorship candidate of the 3rd
Respondent with the 2nd Respondent. (Issue No. 2)
19.
Granted that this Honourable Court has affirmed the justiciability of
Section 34 of the Electoral Act
in Ugwu v. Araraume (supra), which the Court below has followed in
this instant appeal, assuming but not conceding that there has been a breach
of Section 34 of the Electoral Act are there any limits to the remedies (if
any) available to the Plaintiff/Appellant? (Issue No. 3)
20.
Whether the entire appeal is not academic or overtaken by events as a
result of a combination of events, to wit, the unchallenged dismissal of the
Appellant from the fold of the P.D.P, the fact that the elections in issue
have been held in which several other political parties participated, the
declaration of the 2nd Respondent as winner of the said
Governorship election and his being sworn in, the existence of Appellant's
election petition and other petitions in the Rivers State Governorship
Election Tribunal? (Issue No. 4)
21.
What is the real scope and extent of Section 34 of the Electoral Act
in the light of the peculiarities of this instant case?
(Issue No. 5)
22.
Whether the Appellant's exercise of his access to Court in the
challenge of alleged breaches of perceived rights in anyway derogates from
constitutional power given to 1st Respondent to conduct election
under the 1999 constitution and the Electoral Act and if so whether the
Supreme Court can at this point in time venture into the declaration of who
is the winner of the Governorship election in Rivers State? (Issue No. 6)"
Like the 1st
Respondent, the 3rd Respondent in its Respondent's brief of
argument also saw only four issues arising for determination in this appeal.
These issues are –
"(a.)
Whether the lower Court was right in
granting the 1st Respondent's application to adduce fresh
evidence on appeal.
(b.)
Whether or not the lower Court was right hi holding that the
substitution of the name of the Appellant for the 2nd Respondent
was valid having regard to the indictment of the Appellant.
(c.)
Whether the lower Court was right in holding that the fact of
indictment of the Appellant is a fact which the Court can take judicial
notice of and as such the 1st Respondent cannot turn a blind eye
to this fact.
(d)
Whether or not this Honourable Court can grant a prayer of the
Appellant for a declaration that he is the duly elected Governor of Rivers
State having regard to his claim before the trial Court."
Although having regard to the
conduct of the parties in this appeal right from the trial Court to this
Court gave rise to a number of what I may term as 'side issues' in
this appeal, I am of the firm view that the real and main issue in this
appeal is as identified and put forward in issue number 3 in the Appellant's
brief of argument; issue number 4 in the 1st Respondent's brief
of argument; issue number 2 in the 2nd Respondent's brief of
argument and lastly issue number (b) in the 3rd Respondent's
brief of argument. These issues, which I have earlier quoted in full in the
issues formulated by the parties in their respective briefs for the
determination of this appeal, all generally agreed that what calls for
determination in this appeal .is whether the Court below was correct in its
decision affirming the decision of the trial Court that the reason given by
the 3rd Respondent for substituting the Appellant with the 2nd
Respondent as it's Governorship candidate in the Rivers State, for the
election scheduled for 14lh April, 2007, was done in accordance
with the requirements of Section 34 of the Electoral Act, 2006 as
interpreted and laid down by this Court in the case of Ugwu v. Araraume
(2007) 12 N.W.L.R. (Pt.
1048) 367
Section 34 of the
Electoral Act, 2006 which is in contention in this appeal 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."
It is not at all in dispute
between the parties in this appeal that it was the Appellant who emerged as
the flag bearer of the 3rd Respondent in the primaries of the
party conducted in the Rivers State to elect the Governorship candidate of
the party in the State for the 14th April, 2007 election.
Following this success in the primary election, the 3rd
Respondent by a letter dated 14th December, 2006 forwarded the
name of the Appellant as its Governorship candidate to the 1st
Respondent which went ahead to publish his name and particulars as such
candidate in the constituency being the River State as required by law.
However, by another letter dated 2nd February, 2007, the 3rd
Respondent again forwarded the name of the 2nd Respondent to the
1st Respondent as its Governorship candidate for the election to
replace the Appellant whose name was said to have been submitted in error.
This letter of information to the 1st Respondent for the
substitution or replacement of candidate regarded also as an application for
the substitution of candidate as prescribed in Section 34 of the Electoral
Act, 2006 which was in evidence as Exhibit 'D” reads –
"Peoples Democratic Party
(P.D.P)
February 2, 2007
Prof. Maurice Iwu,
Chairman,
INEC,
Abuja
Re: Forwarding
of P.D.P.
Governorship Candidate and Deputy - Rivers State
This is to confirm that
Celestine Ngozichim Omehia and Engineer Tele Ikuru are P.D.P Governorship
and Deputy Governorship candidates for Rivers State.
Barrister Celestine Ngoichim
Omehia substitutes Hon. Rotimi Amaechi whose name was submitted in error.
This is for your necessary
action.
Sign.
Sign.
Sen. Dr. Araadu AH, GCON
Ojo Maduekwe, CFR
National Chairman
National Secretary"
It is significant to observe
that the date and substance of this letter Exhibit 'D” are virtually the
same as those in the letter or application for substitution of candidate
forwarded to the 1s' Respondent by the 3rd Respondent
in respect of its desire to substitute it's Governorship candidate in Imo
State for the -same election scheduled for 14th April, 2007, that
was considered and decided upon by this Court in
Ugwu v. Ararume (2007) 12
N..W.L.R. (Pt. 1048) 367.
The letter of application for substitution or replacement of candidate
forwarded to INEC, the 1st Respondent by the P.D.P, the 3rd
Respondent in that case which was in evidence as Exhibit 'L' in that case,
reads in full as follows:-
"Peoples Democratic Party
(P.D.P)
February 2, 2007
Prof. Maurice Iwu,
Chairman,
INEC,
Abuja
Re: Forwarding of P.D.P.
Governorship Candidate^ and Deputy - Imo State
Our
letter of 18m February, 2007 .
refers please.
This is to confirm P.O. P.
position that Chief Charles Chukwuemeka Ugwu and Col. Lambert Ogborrna
Iheanacho (Rtd) are P.D.P. Governorship and Deputy Governorship candidates
for Irno State;
Sen.
Ifeanyi Godwin Ararume whose name was submitted in error.
This is for your necessary
action.
Sign.
Sign.
Sen. Dr. Amadu All, GCON
Ojo Maduekwe, CFR
National Chairman
National Secretary"
In
considering whether the reason given by the P.D.P. for substituting the name
of Senator Ifeanyi Godwin Araraume with that of Chief Charles Chukwuemeka
Ugwu as the party's.
Governorship candidate for Imo State in the election of 14th
April, 2007, as simply that the name of Araraume was submitted in error, had
satisfied the requirement of Section
34(2) of the Electoral Act, 2006, this Court had this to say in
Ugwu v. Araraume (supra) at page 437 - 438 where Tobi JSC stated the
position of the law –
"The fulcrum or crux of this
appeal is the interpretation of Section 34 of the Electroal 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 (1) 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 F.S.C.
51; (1958) S.C. N.L.R. 28; LaAval v. G. B. Olivant (1972) 3 S.C. 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 Ona Shile v. Idowu (1961) All N.L.R. 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 S.C. 45.
It is certainly not the duty of a Judge to interpret a statute to avoid its
consequences. See Aya v. Henshaw
(1972) S S.C. 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 the 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. 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. Akanu (1987) 3 N.W.L.R.
(Pt. 61) 377. xxx
With the above back ground of the law, I shall take the ;
submissions of Counsel and construct
Section 34(2) of the Electoral Act, 2006.
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 given 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.
xxxx
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?"
The answer to this question
was given by Tobi, JSC at page 455 after dismissing the Appellant's appeal
in the final Orders of the Court where he declared –
"(1.)
I declared that there are no cogent and verifiable reasons for the 2ud
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 here 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."
Taking into consideration that
the applications forwarded to
INEC by the P.D.P. for the substitution or replacement of their Governorship
candidates in lino State Exhibit 'L' in the case
Ugwu v. Araraume (supra) just cited, and Exhibit 'D' in the present
case, were gave 'error' as the only reason the intended substitution of
candidate under Section 34 of the Electoral Act, 2006, it is my view that
the present case and the case of Ugwu
v. Araraume (supra), are the same as far as to whether or not the
requirements of the law in Section
34(2) of the Electoral Act, had been complied with by the P.D.P, in its
application for the substitution of its candidate.
For this reason, on this main issue in the present case as to whether
or not cogent and verifiable reasons have been given as required under
Section 34(2) of the Electoral Act,
2006 for the substitution of the Appellant with the 2nd
Respondent as Governorship candidate of the 3rd 'Respondent in
the April 14,
2007 election in Rivers State,
I am bound by our
decision in Ugwu v. Araraume
(supra) in corning to the conclusion that there was no substitution in
compliance with Section 34(2) of the
Electoral Act, 2006 in the present case. The Court below was therefore
initially on the right course or track in its proceedings of 4th
April, 2007 in its ruling for adjournment undertaking to await the decision
of this Court in Ugwu v. Araraume
(Supra) where the Court said –
"It is the decision of this Court and going by the doctrine of the stare
decisis-judicial precedent that not
wait for the judgment of the
Supreme Court on Section 34 of the
Electoral Act -since that decision shall be law and
applicability shall be binding
on the ; parties particularly political parties
INEC. This Court shall also base other decision on any appeal
involving Section 34 on decision of the Supreme Court. This appeal shall be
adjourned to the 11th of April,
2007.”
Regrettably and sadly too, the
Court below which ultimately heard the appeal and the cross-appeals in this
matter on 16th July, 2007 and in its judgment delivered on 20th
July, 2007 made a complete U-turn to refuse to be bound by the decision Of
this Court in Ugwu v. Araraume (supra)
under the guise that the two cases are not the same. This is what the Court
said –
"This case is disguishable from Araraume's case. That Section 34(2) must be
interpreted in a way to sustain the candidature after the political party
sponsoring the candidate has informed INEC of the change of that candidate
as its candidate.
If the candidature of a withdrawn candidate is sustained because no cogent
and verifiable reason had been given, the Court would be sustaining the
candidature of a person who is no longer being sponsored by a political
party as the Court has no power to impose a candidate on a political party."
This decision of the Court
below on the interpretation and application of Section 34(2) of the
Electoral Act, 2006 on the application by a political party intending to
change any of its candidates whose names have already been submitted to INEC
to contest any election, is a complete reversal of what this Court decided
in Ugwu v. Araraume (supra) which
the Court below has no power to refuse to apply to the present case. The
provisions of Section 34(2) of the Electoral Act, 2006, are quite plain and
unambiguous and as such it was the duty of the Court below, to give the
words 'cogent and verifiable reasons' their appropriate meaning and effect
rather than giving them its own interpretation simply to avoid their
consequences which is not the duty of the Court. See
Aya v. Henshaw (1972) 5 S.C. 8730
Although in line with the
position taken by the Court below in its judgment, learned senior counsel
for the Respondents have strongly argued that the element of indictment of
the Appellant which was present in the instant case right from the trial
Court to the Court of Appeal and finally in this Court, can be said to have
distinguished this case from Ugwu v.
Araraume (supra), this argument is not supported at all by any evidence
in spite of the claim by the Court below of having taken judicial notice of
the said indictment under Section 74 of the Evidence Act. What was before
the trial Court was not an issue of indictment which was staring the trial
Court in the face as remarked by the Court below but that the matter was
raised by the 1st Defendant now 1st Respondent in
paragraph 7 of the statement of defence which states –
"7
Further to paragraph 18, the 1st Defendant states that the
indictment of the Plaintiff by the E.F.C.C. and the acceptance of the Report
of the Panel set-up by the Federal Government provide congent and verifiable
reasons for the Plaintiff's substitution by his Political Party."
In response to this paragraph,
the Plaintiff now Appellant in his reply to paragraph 17 of the Statement of
defence retorted thus –
"The Plaintiff states that he was
not indicted by the Economic and Financial Crimes Commission otherwise known
as 'E.F.C.C.' in any panel set up by the Federal Government and the Federal
Government of Nigeria never accepted any report in this regard."
However, from the record of
this appeal no oral evidence was adduced by me parties rather, all the
parties agreed to rely on the evidence contained in the relevant documents
tendered and admitted b
y
the trial Court as Exhibits A, B, C, D, E and F. Close scrutiny of these
documents, does not reveal anything on the alleged indictment of the
Appellant by the E.F.C.C. The Report of the Panel Set-up by the Federal
Government, the Government's White Paper accepting the Report containing the
list of the said indicted persons including the Appellant showing the
offence or offences he was indicted with, were clearly not before the trial
Court. In the absence of this rather important and relevant evidence in
support of the alleged indictment of the Appellant, the trial Court was
quite in order when it decided to avoid or totally ignore the issue in its
judgment when it said –
"Independent National
Electoral Commission has not told us that they were not able to verify the
cogent reason for error given to it by the Defendant for wanting; to
substitute its candidate. That the Plaintiff's name was in same
indicted list is not before the Court and I shall refrain from touching on
that extensive issue."
It is indeed elementary
principle of law that judgment or decision of a trial Court must be
supported by evidence. See cases of
Metal Construction (W.A.) Ltd; V.D.A. Migliore (1990)
I N.W.L.R. (Pt. 126)
and Obulor v. Oboro (2001) 8 N.W.L.R.
(Pt.714) 25 at 32. The stand of the trial Court on the question of
indictment of the Appellant was therefore in accordance with the law.
The question now is, was the
Court of Appeal right in hanging on the existence of indictment of the
Appellant in its judgment inspite of clear absence of evidence in its
support by resorting to taking judicial notice of the relevant facts to
support it when the source or origin of such facts were not referred to or
even known to the Court itself? The law is indeed trite that no fact of
which the Court must take judicial notice need be proved.
Section 73 of the
'Evidence Act.
Facts which the Court must
take judicial notice of are -clearly set out under
Section 74(1) of the Evidence Act,
and going through the list, I am unable to find in any of the items (a) -
(m), where the word 'indictment' could be accommodated. This is because
the word itself does not constitute the facts of which the Court must take
judicial notice. It is the facts which constitute indictment that are
capable of being taken judicial notice by the Court. By definition, the word
'indictment' simply means a formal accusation; the written accusation
against someone who is to be tried by a Court of law. (In this
regard therefore, it is the formal accusation or charge for any offence
against the Appellant for which the Appellant was to be tried in a Court of
competent jurisdiction that could have constituted the facts showing the
indictment of the Appellant that could have been taken judicial notice of by
the Court. My stand on this requirement is amply supported by the provisions
of Section 74(2) and (3) of the
evidence Act which explains how the powers of Court under the Section
are exercised. The subsections are –
"74(1) ..............
(2)
In all cases in subsection (1) of this Section and also on all
matters of public history, literature, science or art, the Court may resort
for its aid to appropriate books or documents of reference.
(2)
If the
Court is called upon
by any person to take
judicial notice of any fact, it may
refused to do so unless
and until such person
produces any such book or document as it may consider necessary to
enable it to do so." ;
These requirements of Section
74 of the Evidence Act CAP 12 of the Laws of the Federation of Nigeria, 1990
are in line with the definition of the term judicial notice in the case of
Commonwealth Shipping Representative
v. P. O. Branch Services (1923) AC
191 at 212
where the Court said –
"Judicial notice refers
to facts, which a judge can be
called upon to receive and to act upon, either
from his general
knowledge of them, or
from inquiries
to be made by himself for his own
information from sources to which it is proper for him to refer."
Therefore having regard to the
state of the law on the requirements of taking judicial notice of facts
under Section 74 of the Evidence Act,
in the absence of a formal accusation or charge for any offence which the
Appellant was awaiting to face a trial in Court, is alleged to be contained
in the list of the said indicted persons or the Report of the Panel set-up
by the Federal Government and its acceptance of the said Report in a White
Paper which are completely absent in the proceedings and judgment of the
Federal High Court Abuja admitted as additional evidence on appeal by the
court below, there is no basis whatsoever for the Court below to have taken
judicial notice of the alleged indictment of the Appellant as providing the
cogent and verifiable reasons for the substitution of the Appellant's name
with that of the 2nd Respondent as Governorship candidate for
tire April 4, 2007 election in Rivers State.
In any case, having regard to
the clear and unambiguous wording of the provisions of subsection (2) of
Section 34 of the Electoral Act which says –
"(2)
Any application made pursuant to subsection (1)
of this Section shall give cogent and verifiable
reasons."
The obligation of giving or
providing cogent and verifiable reasons in its application to substitute or
replace any candidate for any election under the Electoral Act, 2006, lies
squarely on the shoulders of a political party wishing to effect the change.
There is no, a copy of the Report of the E.F.C.C. indicting the Appellant
whose no obligation whatsoever on INEC or the Court to which any complaint
on the compliance or otherwise with Section 34 of the Electoral Act 2006,
may be brought, to look outside the application for the relevant facts, as
reasons for wanting to effect the change or substitution of candidate.
In
the instant
case, although
the application
of the
3rd Respondent for the substitution of its candidate,
Exhibit 'D', was written and submitted to INEC, the 1st
Respondent on 2nd February, 2007, the alleged accusation or
indictment of the Appellant did not come to light until 17th
February, 2007. It is not
surprising therefore that 'indictment'
as one of the reasons for wanting to effect the substitution of its
candidate for the April, 14th 2007 Election in Rivers State,
could not have found its way into Exhibit 'D' which contains only 'error' as
reason for the substitution.
For the same reason, the proceedings and judgment of the Federal High
Court Abuja in the case instituted by the Appellant which was struck out by
that Court for being an abuse of the process of the Court on 30th
March, 2007, admitted as fresh evidence by the Court below, could not have
been regarded as cogent and verifiable reason for the intended substitution
of candidate contained in the 3rd Respondent's letter Exhibit 'D'
dated 2nd February, 2007. In other words the cogent and
verifiable reasons contemplated under
Section 34(2) of the Electoral Act 2006, are cogent and verifiable
reasons given by the political party applicant wishing to effect any change
of candidate in its application to INEC, specified in that Section of the
Act. Therefore any reason or reasons plucked out or extracted from any
source outside; the letter or application for the substitution of candidate
by the Respondents or the Court below after 2nd February, 2007,
is certainly not a reason within the contemplation or requirement of
Section 34(2) of the Electoral Act,
2006.
Returning to the part of the
judgment of the trial Court setting aside any action taken by INEC on the
letter of the P.D.P. Exhibit 'D' asking for the substitution of its
candidate while this case was subjudice, which learned Senior Counsel for
the 2nd Respondent described as a mere Obiter Dictum, even
at the expense of repetition, I again quote that part of the judgment which
reads –
"On Independent National
Electoral Commission acting on Exhibit D while the case is subjudice, I find
that, that is a reprimandable act and the proper thing to have done is await
the outcome of the suit and on the authority of the case of
Ojukwu v. Government of Lagos State,
any action done pursuant to Exhibit D while this case is
subjudice is
hereby set aside."
The positive order contained
in this part of the judgment of the trial Court, is indeed a decision
binding on all the parties to the case particularly INEC, the 1st
Respondent, which was the 1st Defendant to which the order was
directed. As long as this order
remained in force, the law required the 1st Respondent to obey it
pending its being set aside by the trial Court itself on appropriate
application or on appeal by an appellate Court.
The order is not an obiter as assumed or described by the learned
Senior Counsel for the 2nd Respondent. The fact that both the 2nd
and 3rd Respondents had to cross-appeal against the order to the
Court of Appeal to have it set aside means that it was indeed a ratio
decidendi of the Court because
an obiter dictum does not decide the life issues in the matter to
give any right of appeal. See Orugbo
v. Una (2002) 16 N.W.L.R. (Pt.
792) 175 at 208. The order of the trial Court directed at
INEC, the 1st Respondent handed down on 15th March,
2007, nearly one month before the election of 14th April, 2007
remained in full force until 20th July, 2007, when it was set
aside by the Court of Appeal in its judgment.
The effect of this situation created by the delay in the hearing of
the matter as the result of various obstacles placed on the path of the
Court below and this Court to expediciously hear and dispose of the matter
before the election of 14th April, 2007 is that the name of the
Appellant earlier submitted to the lsi Respondent to contest the
election as candidate of P.D.P, the 3rd Respondent, remained as
such candidate up to 14th April, 2007, when the election was
conducted.
In the result, following the
judgment of the trial Court setting aside any action taken on the letter of
application for substitution of candidate Exhibit D, coupled with the fact
the same letter Exhibit 'D' does not give any cogent and verifiable reasons
for the substitution of the Appellant as candidate of the 3rd
Respondent in compliance with Section
34(2) of the Electoral Act, 2006 as decided by this Court in
Ugwu v. Araraume (supra), this appeal must succeed and it is hereby
allowed by me on the reasons given. The judgment of the Court below given on
20th July, 2007 is accordingly hereby set aside. In place of that
judgment set aside, I hereby affirm the Orders in form of reliefs granted to
the Appellant by this Court on 25th October, 2007.
I now come to the Preliminary
Objections raised by the 1st and 2nd Respondents on
the jurisdiction of this Court to hear and determine the appeal and grant
the reliefs sought by the Appellant. The objections are mainly rooted on the
false assumption of ail the Respondents that the Appellant's case though
having commenced at the trial Court before election, not having been
disposed of at the appellate
Courts before
election and
swearing in
of the
2nd Respondent as Governor of Rivers State, has now become
academic as the result of its having been transformed into a post election
matter, within the jurisdiction
of the Election Tribunals thereby depriving this Court of its jurisdiction
to grant any relief to the Appellant. This
argument is
completely baseless
because the Respondents
failed to realize that this appeal has its :root from the decision of the
Federal High Court given on 15th March, 2007 which was affirmed
on appeal and cross-appeals by the parties at the Court of Appeal on 20th
My, 2007. If appeal does not-lie from that decision of the Court of Appeal
to this Court as prescribed by Section 233(1) of the 1999 constitution which
states –
"233(1)
The Supreme Court shall
have jurisdiction, to the
exclusion of any other Court
of law in Nigeria, to
hear ' and determine appeals from
the Court of Appeal."
Then the Respondents no longer
regard the 1999 constitution as an existing statute. I must observe that the
action of the Respondents in frustrating the expeditious hearing and
determination of the Appellant's appeal and his expulsion from the P.O.P.
aimed at interfering with the jurisdiction of the Court of Appeal and of
this Court is most unfortunate. It ma}' not be out of place if on this
rather ignoble role played by the Respondents, I quote and adopt the
observation of Fatayi Williams CJN of the blessed memory in the case of
Sokefun v. Akinyeini (1981) 1
N.C.L.R.135 at 146 where he said –
"The jurisdiction and
authority of the Courts of this Country cannot be usurped by either the,
Executive or the Legislative branch of the Federal or State Government under
any guise or pretext whatsoever."
That is why in this matter
this Court refused to allow the Respondents comprising INEC and the P.D.P.
who are themselves the creation of the constitution and the 2nd
Respondent, a member of the P.D.P, to usurp the jurisdiction and powers of
this Court under any guise or pretext whatsoever to pervert the course of
justice in this matter. To succumb to the arguments of the learned Senior
Counsel to the Respondents on the lame issue of jurisdiction, would
certainly amount or result in allowing parties to take the reins of
adjudication from the Courts.
The case having commenced by a
writ of summons and heard on statement of claim and statements of defence
filed by the parties, can never be transformed into an election matter which
under the same Constitution is
commenced by Petition before
an Election Tribunal. I
am therefore of the view that that no amount of gimmicks or self
induced
transformation of
the case
by the Respondents
would have
the effect
of changing
the nature
or character of this case to push it out of the jurisdiction of this
Court. Since thus Court has jurisdiction to hear the appeal and the
cross-appeals, there is no provision of the Constitution or any law for that
matter that may prevent or place any obstacle in the path of this Court in
doing justice in the matter by granting any appropriate reliefs to the
successful party.
With regard to the
cross-appeal grounded on the provision of Section 308 of the 1999
constitution, I entirely agree with the decision of the Court below. This
matter having started since 26th January, 2007 at the Federal
High Court long before election of 14th
April, 2007, the assumption of office by the 2nd
Respondent as the Governor of Rivers State would not have the effect of
'destroying the acquired rights by the Appellant who was already in Court in
search of justice.
As for the argument of the 2nd
Respondent that this case is void ab initio for being derived from the
judgment of the trial Court not based on evidence heard from the parties,
there is no truth whatsoever on this stand of the 2nd Respondent.
The trial Court heard the parties through the documentary evidence admitted
with the consent of all the parties as Exhibits A - F. The judgment of the
trial Court is therefore supported by evidence and is quite valid in law in
spite of the fact that none of the parties gave or called oral evidence.
Learned senior counsels to
Respondents have argued variously that this Court has no power to grant the
reliefs sought by the Appellant.
From the substance and pronouncements of the learned trial judge and
the Appellant's appeal and the Respondents' cross-appeals to the Court of
Appeal against that judgment, on the facts and the law, the 2nd
Respondent whose substitution as a new candidate of the 3rd
Respondents was effectively set aside by the trial Court, did not therefore
contest the election of 14th April, 2007.
Further more, the assumed substitution erroneously or flagrantly
recognized by the 1st and 3rt Respondents was not in
compliance with Section 34(2) of the Electoral Act, 2006 and the decision of
this Court in Ugwu v. Araraume (supra).
The Appellant therefore in the eyes of the law remained effectively the
authentic candidate of the 3Td Respondent for the Governorship
election of 14th April, 2007 in Rivers State and for that reason
ought to have been sworn in as the Governor of the State.
It is for these reasons that
on 25th October, 2007 when this appeal and the cross-appeals were
heard, I allowed the appeal and dismissed the cross-appeals. These are my
reasons for doing so and for granting the Appellant the appropriate reliefs
on that day.
I am not making any order on
costs.
Reasons for Judgement
Given by
Walter Samuel Nkanu Onnoghen,
JSC
This is an appeal against the
judgment of the Court of Appeal, holden at Abuja in appeal number CA/A/70/07
delivered on the 20th day of July, 2007 in which it dismissed the
appeal of the appellant against the judgment of the Federal High Court
delivered on 15/3/07, in suit No. FHC/ABJ/CS/29/2007 and
allowed the
cross appeals of the
respondents.
On Thursday, the 25th
day of October, 2007 when this appeal was heard, I delivered my judgment in
the open court after the submissions of learned Senior Counsel for the
parties, allowing the appeal of the appellant and dismissing the cross
appeals and did promise to give details of my reasons for the judgment
today, the 18th day of January, 2008. The instant exercise is in
fulfilment of that promise.
The appellant, a member of the
Peoples Democratic Party (PDP) was one of the 8
candidates who contested the primaries for nomination as Peoples
Democratic Party (PDP) candidate for the Rivers State Governorship election
scheduled for ihe 14th day of April, 2007. It is not disputed
that from the records, he scored the highest votes cast at the primary
election and was not only declared the winner of same but his names and
relevant particulars were duly sent by the party, the ' 3rd
respondent in this appeal, to the 1st respondent as the 3rd
respondent's duly nominated candidate for the scheduled general
election. The parties are agreed that the 2nd respondent was
never a candidate in the primary election conducted to nominate the
candidate for the Rivers State Governorship election neither did he win the
same. Upon the receipt of the nomination of the appellant, the 1st
respondent caused -the name of the appellant to be published in the
Constituency as required by the Electoral Act, 2006.
However, on the 2nd
day of February, 2007, the 3rd respondent acting under its powers
of substitution or change of candidate for the election, purported to
exercise same by submitting the name of the 2nd respondent to the
1st respondent as a substitute for the appellant for the said
election on the ground that the name of the appellant was earlier submitted
"in
error".
Meanwhile, and in anticipation
of the threat to substitute him with the 2nd respondent, the
appellant caused a writ of summons to be issued against the 1st
respondent on the 20th day of January, 2007 and by an amended
statement of claim to be found at pages 65 to 70 of the record, the
appellant claimed the following reliefs:-
“i.
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 if the candidate is
disqualified by a Court Order.
ii.
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.
iii.
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).
iv.
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.
v.
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.
vi.
A declaration that there are no cogent and verifiable reasons for the
Defendant to change the name of the Plaintiff with that of the 2nd
defendant candidate of the People's Democratic Party (PDP) for the April,
13, 2007 Governorship Election in Rivers State.
vii.
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 of the Peoples Democratic party (PDF) for Rivers State in the
forthcoming Governorship Election in Rivers State, after the Plaintiff has
been duly nominated and sponsored by the People's Democratic Party as its
candidate and after the 1st Defendant has accepted the nomination
and sponsorship of the Plaintiff and 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.
viii.
An order of perpetual injunction restraining the defendants jointly
and severally by themselves, their agents, privies or assigns from changing
or substituting the name of the plaintiff as the River State Peoples
Democratic Party Governorship candidate for the April, 2007 Rivers State
Governorship 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 action, as stated earlier
in this judgment was commenced by way of a writ of summons in which
pleadings were duly filed by, and exchanged between the parties. At the
close of pleadings, the parties, by consent settled the issues arising from
the pleadings for determination and tendered certain documents as exhibits
from the Bar. Except the 'documentary evidence so tendered and admitted, no
oral evidence was given as learned senior counsel for the parties addressed
the trial court on the issues as earlier settled.
In his judgment, the learned
trial judge held that there was cogent reason given by the 3rd
respondent for wanting to substitute its candidate and only the 1st
respondent can determine if the reason was verifiable or not; that the 3rd
respondent has the right to change its candidate within 60 days to the
election in compliance with the provisions of the Electoral Act, 2006 and
that injunction to restrain the respondents jointly and severally or through
their agents from changing or substituting the name of the plaintiff as the
Rivers State Peoples Democratic Party Governorship candidate for the April,
2007 Governorship election unless a court order is made disqualifying the
plaintiff and or until cogent and verifiable reasons are given cannot be
granted as the respondents have complied with the laid down procedure of
substituting a candidate under section 34(1) and (2) of the Electoral Act,
2006. However, it is important to note that though the trial court held that
the substitution was made within the stipulated time of 60 days to the
election, it nevertheless set aside the said substitution on the ground that
it was done during the pendency of the litigation between the parties.
The appellant was dissatisfied
with the judgment of the trial court and appealed to the Court of Appeal
while the respondents cross appealed which appeal was dismissed by the Court
of Appeal and the cross appeals partially succeeded resulting in the further
appeal to this Court the issues for determination of which have been
identified in the appellant's brief of argument filed on 8/10/07 as
follows:-
"(1)
Whether
the Court of Appeal was not In error In allowing fresh evidence on appeal,
when no exceptional circumstance was shown to warrant such admission?
(2)
Whether having regard to the undertaking before the court, court
below ought not to have followed the decision of the Supreme Court in
Ugwu vs Ararume (supra) ?
(3)
Whether there exists cogent and verifiable reason to warrant the
substitution of plaintiff's name with that of (sic) any other person in
breach of section 34 of the Electoral Act, 2006 and if not, whether the
purported substitution of plaintiff's name is not null and void?
(4)
Whether /NEC
(1st Respondent) can
rely on extraneous fact or any fact not presented by a political party
seeking substitution to verity reason given for seeking substitution?
(5)
Whether there was in existence any indictment of the plaintiff for
same to be used as a basis to verify the reason of error given by the
3rd
Respondent for seeking
substitution of plaintiff's name? and
(6)
Whether having regard to the concept of lis pendens and the
fact that at the material time of the election, plaintiff being the only
lawful candidate of the People Democratic Party, he ought not to be declared
the winner of 14th April, 2007 general election of Rivers State?"
There are two cross appeals in
the instant appeal; one by the 2nd respondent and the other by
the 3rd respondent.
The issues for determination
in the 2nd respondent's cross .appeal
as identified in the
Cross Appellant's brief filed
on 15/10/07 by Messrs J.B. Daudu SAN and E.G. Ukala, SAN are as follows:-
"66.
Whether the Court of Appeal
was correct when it held that the appeal in issue did not abate upon the 2nd
respondent being sworn in as the Governor of Rivers State whereupon he
acquired constitutional immunity pursuant to section 308 of the 1999
Constitution?
67.
Whether the Court of Appeal was correct in
law when after finding that
the entire gamut of appellants (sic) dispute arose from nomination and
sponsorship (matters within the domestic sphere of the 3rd
respondent] it did not rule the entire dispute non justiciable?
68.
Whether the proceedings are not void
ab initio on the basis that
evidence viva voce was not taken
in a suit commenced by writ of summons/statement of claim in respect of
reliefs that were all declaratory in nature?"
On the other hand, a single
issue was formulated in the 3rd Respondent's/Cross Appellant's
brief of argument filed on 15/10/07 by Chief Joe Kyari Gadzama, SAN, to wit:
"Whether the court below was
right in law to hold that the appeal before if was an election related
matter and having so held went further to hold that the second respondent
was not entitled to enjoy the benefits of the immunity conferred on him by
virtue of section 308 of the Constitution of the Federal Republic of
Nigeria, 1999 having taken the oath of office and the oath of allegiance as
the Governor of Rivers State and placing reliance on the cases of
AD vs Fayose (2004) 8 NWLR pt. 876 p.
639 and Obi v. Mbakwe (1984) 1
SCNLR 192 to arrive at this conclusion."
From the issues formulated for
determination of the cross appeals, it is very clear that the pivot or
fulcrum of the cross appeals is the claim of constitutional immunity by the
2nd respondent/cross appellant as it relates to the peculiar
facts of this case. Of course the issue is relevant having regard to the
fact that at the relevant point in time, the 2nd respondent had
been sworn in as the Governor of Rivers State of Nigeria and section 308 of
the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter
referred to as the 1999 Constitution) confers immunity on occupants of that
office. However, the issue will take its proper pride of place in the course
of this Judgment. Now to the main appeal.
In arguing issue 1, learned
Senior Counsel for the appellant, L.O. Fagbemi, Esq, SAN submitted that
though Order 1 Rule 19(2) of the Court of Appeal Rules makes provision for
admission of additional evidence on appeal, it is not in every situation
that such fresh evidence would be allowed. Learned Senior Counsel then gave
the three instances where
fresh evidence would be allowed in appeal to include:
(i)
that the evidence sought to be adduced
must be such as could not have been with reasonable diligence, obtained for
use at the trial, or are matters which have occurred after judgment in the
trial court;
(ii)
the evidence to be adduced should be such
as if admitted it would have an important, not necessary crucial effect on
the whole case;
(iii)
the evidence must be such as apparently credible in the sense that it
is capable of being believed and it need not be incon........., relying on
the case of Akanbi v Alao (1989) 3
NWLR (pt. 108) 118 at 137-138;
that the ruling of the trial
court which was admitted as additional evidence on appeal was not pleaded by
the parties thereby rendering same in admissible; that what was pleaded was
indictment by EFCC and acceptance of same by the Federal Government, not the
ruling in suit No FHC/ABJ/CS/74/2007 or any judicial pronouncement
thereof; that the ruling admitted had no probative value as it proved
nothing as the trial court did not find in that suit that appellant was
indicted but merely dismissed the suit for being an abuse of process.
In the 1st
Respondent's brief of argument filed by Chief A.I. Idigbe, SAN on the
15/10/07, appellant's issue No. 1 was treated therein as issue No. 3. In
arguing the issue, learned Senior Counsel submitted that the lower court was
right in allowing the application of the 1st respondent for
further evidence on appeal and in admitting the ruling as the parties had
joined issues on the matter of indictment of the appellant; that the ruling
in FHC/ABJ/CS/74/2007 was delivered on 30/3/07 after the judgment of the
trial court on 15/3/07; that the ruling was not in existence at the time of
trial hence it could not have been pleaded though it is the law that
documents in support of facts pleaded need not be pleaded as they can be
tendered in support of facts pleaded, relying on the case of
Monier Construction Co. Ltd vs.
Azubuike (1990) 3 NWLR (pt. 136) 74; Odunsi vs Bamgbala (1995) 1 NWLR (pt.
374) 641 at 667.
On the principles guiding the
courts on admissibility of fresh evidence on appeal, learned Senior Counsel
cited and relied on the case of
Akanbi vs Alao, supra; Asaboro vs
Aruwaji (1974) 4S.C
(Reprint) 87 at 90-91; Okoro vs Egbuaoh (2006) 15 NWLR (pt. 1001) 1; FBN Plc
vs Jibo (2006) 9 NWLR (pt. 985) 255; Okenwa vs Mil. Governor, Imo State
(1996) 6 NWLR (pt. 455) 394; Obasi vs Onwuka (1987) 3 NWLR (pt. 61) 364;
Agwuna 111 vs Isiadinso (1996) 5 NWLR (pt. 451) 705 and Owata vs Anyigor
(1993) 2 NWLR (pt. 276) 380, and submitted that the facts of the case
justified the application of the principles in the instant case and urged
the court to resolve the issue in favour of the respondents.
Learned Senior Counsel for the
2nd Respondent submitted that the lower court was right in
admitting the document as it was a document that came into existence after
the trial and it is relevant to the case; that documents need not be
specifically pleaded to render them admissible if the relevant facts have
been pleaded. Learned Counsel urged the court to resolve the issue against
the appellant.
Learned Senior Counsel for the
3rd Respondent treated the issue under his issue A and submitted,
like the previous respondents that the lower court was right in admitting
the additional evidence and urged the court to resolve the issue against the
appellant.
Both parties agree that for
the document to be admitted as an additional or
fresh evidence on appeal, it must satisfy certain preconditions, to wit:
1.
The evidence sought to be adduced must be such as could not have
been, with reasonable diligence, obtained for use at the trial;
2.
The evidence should be such as if admitted would have an important
not necessarily crucial effect on the whole case;
3.
The evidence must be such as apparently credible in the sense that it
is capable of being believed and it need not be incontrovertible; and
4.
It is in the interest of justice in the case not only to one of the
parties but that the evidence be admitted. The
crucial question however, remains whether the document in issue satisfies
these requirements?
The second vital point not in
dispute by the parties is the fact that the document in this case was not
pleaded by any of the parties. While the appellant has submitted that
parties are bound by their pleading and that evidence on facts not pleaded
ground to no issue and that the document is thereby inadmissible,
the respondents
have contended
that what determines
admissibility of
evidence is
relevance and
the pleading of relevant facts, not evidence by which the facts can
be proved
and by
extension that
since the
fact of indictment was
pleaded, the evidence by which it is provable i.e the ruling of the court,
need not be pleaded to render same admissible in evidence.
I agree with the submission of
learned Senior Counsel for the respondents on the point as it is settled law
that every pleading shall contain statement of all material facts on which
the party pleading relies, but not the evidence by which they are to be
proved. The relevant question then becomes, what is the pleadings of the
parties relevant to the facts in issue in this case?
In paragraph 7 of the
Statement of Defence of the 1st respondent it is pleaded as
follows:-
"7.
Further to 18, the
1st defendant
states that the indictment
of the plaintiff by the Economic
and Financial Crimes Commission (EFCC) and the acceptance of the report of
the panel set up by the Federal Government provide cogent and verifiable
reasons for the plaintiff's substitution by his political party."
The reply of the plaintiff
(appellant) to the above averment of the 1st respondent is:-
"Plaintiff
states that he was not indicted by the Economic and Financial Crimes
Commission (EFCC) otherwise known (sic) as EFCC or any panel set up by the
Federal Government and the
Federal Government of Nigeria never accepted any report in that regard."
From the above pleadings, it
is very clear that issues were joined by the parties on the fact of the
existence of an indictment by EFCC of the appellant and secondly the
acceptance of the report by the panel set up by the Federal Government. In
other words, there are supposed to exist the fact that appellant was
indicted by the EFCC and the acceptance of that indictment by the Federal
Government of Nigeria
following the
report of
a panel
set up
by that government
on that issue.
It is therefore clear that two
distinct documents must exist to prove the facts pleaded in paragraph 7 of
the 1st respondent's statement of defence, namely:
(a)
the indictment, and,
(b)
acceptance
of same
as evidence
in a
Federal Government of Nigeria gazette.
The question is whether what
was tendered and admitted was relevant to the facts as pleaded.
It is not in doubt that the
document alleged to be proof of the indictment and acceptance of same was
not in existence at the time the Federal High Court delivered its judgment
in this case on 15/3/07 whereas the document/judgment in FHC/ABJ/CS/74/2007
was delivered on 30/3/07. This satisfies the requirement that the document
or evidence sought to be tendered must not have existed or available at the
time of trial so as to avoid giving the applicant a second bite at the
Cherry, which would/could result in injustice to the other party.
In the instant case however, I
have gone through the judgment in FHC/ABJ/CS/74/2007 - the additional
evidence - and have not seen the alleged indictment of the appellant by the
EFCC neither does it contain the Federal Government of Nigeria's official
gazette accepting the alleged indictment. In fact, the judgment is not
relevant to the facts pleaded as it also does not make any specific findings
of facts relevant to the facts pleaded in this case. What the judgment did
was simply to dismiss the action of the appellant on the ground that it
constituted an abuse of court process. The purported indictment was never
tendered in that proceedings neither was the
White Paper or any other form of acceptance by the Federal Government of
Nigeria. In short, the document has no evidential value having regard to the
state of the pleadings at all and was therefore, in my view, wrongly
admitted as fresh evidence by the lower court. The wrongful admission of the
document in the instant case resulted in grave consequences as it
constituted the basis on which judgment was entered by the lower court in
favour of the respondents. That is very unfortunate. The non existence of
any indictment by EFCC against the appellant and the acceptance of same by
the Federal Government was confirmed by learned Senior Counsel for the 2nd
respondent when I asked him at the hearing of the appeal to refer the court
to the pages of the record where the relevant documents could be found and
he could not. The only way by which the document could have been legally
admissible as fresh evidence on appeal is, if it was tendered in proof of
the facts pleaded and on which issues have been joined. As it were the
instant document ground to no issue as it is irrelevant. I therefore resolve
the issue in favour of the appellant.
On issue 2, learned Senior
Counsel submitted that the lower court having stated on record that it would
be bound by the decision of the Supreme Court in
Ararume's case on section 34 of
the Electoral Act, 2006 it was bound by it and ought to have applied the
decision of this Court on the said case to the facts of this case, relying
on Oyeyemi vs Irewole
Local Government (1993) 1 NWLR
(pt. 270) 462 at 477;
that the attempt at distinguishing
Ararume's case from the facts of the instant case amounts to a
distinction without a difference.
On his part, learned Senior
Counsel for the 1st respondent submitted that the facts of the
instant case are distinguishable from
Ararume's case and as such the lower court was right in not applying
same in its decision; that the distinguishing features include the admission
of additional evidence, election having taken place on 14/4/07 and the
return and declaration of 2nd respondent as elected Governor of
Rivers State thereby raising the issue of constitutional immunity; that it
would be
"stretching the doctrine of precedent dangerously too far to insist that a
Court of Appeal is not at liberty to distinguish one matter from the other
when it sees there are features that makes (sic) such distinction
imperative;" that the lower court held that in
Ararume's case the error could
not be related to the facts and information available and at the disposal of
the 1st respondent
to verify whereas
in the
instant case,
the evidence to justify the error was already at the disposal of the
1st respondent, that the decision in
Oyeyemi vs Irewole Local Government
supra
cited by
his learned
friend silk
is not applicable
to the facts of the case and urged the court to resolve the issue against
the appellant.
The learned Senior Counsel for
the 2nd and 3rd respondents did address the issue in
similar vein in the 2nd and 3rd respondent's briefs of
argument.
When one takes a close look at
the issue under consideration, it is very clear that learned counsel for the
appellant is attacking the fact that the lower court did not adhere to its
stated intention to follow the decision of the Supreme Court in
Ararume's case in deciding the
instant case then on appeal before it. The issue therefore is two fold
(a)
the court's undertaking to be bound by whatever the Supreme Court
decided in Ararume's case and
(b)
application of the doctrine of judicial
precedent.
It is in relation to (a) supra
that learned Senior Counsel submitted that the lower court having so decided
it amounted to a statement of guiding principle binding on that court, hence
the reliance on Oyeyemi's case
supra, where it was held at page 477 thus:
"Moreover, once the court made
a statement of its guiding principles, it was bound to follow them for, by
such statement of guiding principles, the court
had set for itself a yardstick of measurement for its correct exercise of
its discretion. Having set those criteria and standards for itself, for it
to turn, as it were, somersault and decide on how to exercise its discretion
without using them as acid tests for the correctness, or otherwise, of the
exercise was to decide arbitrarily ......."
I must hasten to point out
that application of the "principles of
stare decisis or judicial
precedent does not involve an exercise of judicial discretion at all. It is
what must be done; mandatory. The doctrine is based first of all on the
relevant likeness of or between the cases - the previous case and the one
before the court. If there is no likeness between the two, it
is an idle exercise to
consider whether the previous one should be followed or departed from.
It is settled law that a previous decision is not to be departed from
or even followed, where the facts or the law applicable in the previous case
are distinguishable from those in the latter case.
In the instant case, and
applying the law to the facts, it is my considered view that the lower court
was not, without more, bound to apply the decision in
Ararume's case, which was not in
existence at the time the commitment was made to the facts of the instant
case without considering any distinguishing features that may be brought to
its attention between the two cases. The decision to follow that case does
not involve the exercise of any discretion by that court particularly where
the facts are similar. In the instant case, the lower court thought the
issue of indictment of the appellant by EFCC constitutes a distinguishing
feature between Ararume's case
and the instant one and I think the court is entitled to so
hold leaving it for this
Court to determine whether that decision is right or wrong.
Learned Counsel for the
appellant argued issues 3, 4 and 5 together.
Referring to and placing
reliance on the decision in the case of
Adah vs N.Y.S.C. (2001) 1 NWLR (pt.
693) 65 at 79 - 80, learned Senior Counsel submitted that in
interpreting the provisions of section 34 of the Electoral Act, 2006, the
words used in the statute are to be given their natural or ordinary meaning
as they (words) admit of no ambiguity; that on a literal interpretation of
the said section 34 of the Electoral Act, 2006, a political party has the
right to change any of its candidates at least 60 days to the election; that
section 34 of the Electoral Act, 2006 enjoins a political party intending to
change or substitute its candidate to first apply to INEC giving cogent and
verifiable reasons for the change or substitution; that all the steps are
mandatory, relying on Ugwu vs Ararume
(2007) 12 NWLR (pt. 1048) 364; that the 3rd respondent gave
no reason in the pleadings for wanting to substitute the name of the
appellant; that no report or list of EFCC was tendered to prove or establish
the supposed indictment of the appellant neither was there any prove of the
acceptance of that report by the Federal Government; that from the facts of
the case particularly the participation of the appellant in the primary
election of the party in which he emerged the winner, the reason of error in
the substitution of his name with that of the 2nd respondent, who
never participated at the election, cannot be said to be cogent and
verifiable; that there was no indictment when the substitution was sought
and obtained; that indictment report is not something that can be judicially
noticed as decided by the lower court.
Referring to the judgment of
the Federal High Court in suit No FHC/ABJ/CS/74/2007 delivered on
30/3/07, Learned Senior Counsel submitted that it made no findings on the
alleged indictment of the appellant and as such does not constitute
evidence of indictment, and urged the court to resolve the issues in
favour of the appellant.
On his part, learned Senior
Counsel for the 1st respondent submitted that contrary to the
submissions of his learned friend silk, supra, there are distinguishing
factors in this case from the case of
Ugwu vs Ararume supra which resulted in the holding that the appellant
was properly substituted in accordance with the provisions of section 34(1)
and (2) of the Electoral Act, 2006; that the distinguishing factors include
the following:-
(a)
that the 2nd respondent did not
participate in the primaries while in
Ararume's case, the appellant came first in the primaries but was
substituted;
(b)
the error necessitating the change was verified from the
circumstances of the information at the disposal of the 1st
respondent unlike in Ugwu vs Ararume
where the error could not be related to the facts and information available
to INEC to act and verify;
(c)
unlike the
Ararume's case, the published
list of the appellant's indictment supplied the missing link which made the
reason verifiable;
(d)
the appellant was not disqualified by the 1st respondent
from contesting based on the list captioned investigated and indicted, but
it was the party that substituted his name under section 34(1) and (2) of
the Electoral Act, 2006; and,
(e)
that unlike the Aramme's case, the 2nd
respondent has been declared and returned as the Governor of Rivers State at
the 14/4/07 election and only a tribunal can upset the declaration and
return of the 2nd respondent as Governor of Rivers State.
Finally, learned Senior
Counsel submitted that section 34(2) of the Electoral Act, 2006 gave the 1st
respondent the obligation of verifying the reasons given for the
substitution and urged the court to resolve the issues against the
appellant.
On the other hand, learned
Senior Counsel for the 2nd respondent submitted correctly
"that
the degree of disparity between
the facts herein and the decision of this Honourable Court in Ararume
and the legal consequences flowing therefrom are in reality the crux of the
matter in this appeal."
Learned Counsel then submitted that section 34 of the Electoral Act, 2006 is
clear and straightforward and amenable only to literal interpretation and
that to so interprete the section, sub-section 2 of section 34 should be
read subject to section 34(1) thereof, relying on the decision in Matari
vs Dangaladima
(1993) NWLR (pt. 281) 261;
that the object of the section is to allow political parties substitute
candidates, 60 days to election day, upon information to
INEC and
that the procedure for
transmitting the information which is the object of subsection 2 of section
34 cannot override the main object of the section which remains to provide
liberty to political parties to effect a change in candidates in a specified
manner; that subsection 2 of section 34 does not create any sanctions or
held rights that transcend the fact that party nomination and substitution
remains in the domestic domain of political parties, learned Counsel further
submitted.
Learned Senior Counsel then submitted that the lower court is right in
holding that the substitution of the appellant complied with section 34 of
the Electoral Act, 2006 and invited the court to apply the decision in
Ararume's case to the facts of this case "dispassionately.";
that there are differences
between Ararume's case and the
instant case particularly as issues were joined at the trial of this case on
the matter of indictment which was what INEC, the 2nd respondent
is alleged to have verified as the reason for substituting the appellant's
name in error; that by the Constitution of the PDF, 3rd
respondent herein, which binds the appellant and other members, the fact
that 2nd respondent did not take part in any primaries is of no
moment as it provided therein that the party reserves the right to field any
candidate it deems fit; that the language of section 34 did not expressly or
impliedly disclose any intention to override the age old judicial policy
which is not to involve itself in the domestic affairs of political parties
in choosing, changing or substituting their candidate, relying on
Uyovwukerhi vs Afohughe (1976) 5 S.C
85 at 93 and Maxwell On
Interpretation of Statute 2nd Ed. 116-117.
In conclusion, learned Senior
Counsel submitted that section 34 of the Electoral Act, 2006
“ought
not to be imperatively interpreted
as if appellant has a personal right to the office of Governor, with or
without his party's sponsorship. At best, flowing from the principles in:
(i)
Onuoha v Okafor (1983) 2 SCNLR 244 at 204;
(ii)
Dalhatu v Turaki (2003) 15 NWLR (pt. 843) 310 at 347.
(iii)
Ogunbiyi v Ogundipe (1992)
9
NWLR (pt. 263)
4 at 39.
The right to sponsor a candidate by a political party for an election is not
a statutory right or a legal right that is vested in a candidate rather it
is the right of the political party guaranteed by 1999
Constitution which is domestic to
the political party and ought not be subject of determination by a court of
law except for the purpose of computing damages in the event that there is
fault or liability found against the party"......
On his part, learned Senior
Counsel for the 3rd respondent submitted that consent or
undertaking of counsel to adjourn the matter to abide the decision of the
Supreme Court in Ararume and to
apply same to the facts of this case, cannot be a basis for the court to
decide a matter in a particular way as parties cannot, by agreement confer
jurisdiction on a court where it lacks same, to hear and determine a matter
before it; that the lower court was right in not following the decision in
Ararume's case for the following
reasons:-
(i)
the issue of indictment did not arise in
Aramme's case to warrant the
application of the doctrine of stare
decisis to this case;
(ii)
the 2nd respondent contested
and won the Rivers State Governorship election and had been sworn into
office, and,
(iii)
unlike
Ararume who contested the
election as candidate the appellant never contested the elections a
candidate;
that
the above
facts constitute
distinguishing factors
between Ararume's case and the
instant case and thereby make
Ararume's case inapplicable to
the facts of the instant case.
Learned Senior Counsel then
proceeded to address the issue of section 34 of the Electoral Act, 2006 and
submitted that the lower court is right in holding that the substitution of
the name of the appellant was valid particularly as exhibit D was made
within 60 days allowed by law to effect the change or substitution; that the
indictment of the appellant for financial impropriety while functioning as
the Speaker of the Rivers State House of Assembly constitutes cogent and
verifiable reasons for the substitution and that by the operation of section
73 of the Evidence Act, the court can take judicial notice of that fact.
Learned Senior Counsel urged the court to resolve the issues against the
appellant.
Now 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 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."
Both parties are agreed that
the provision of section 34 supra is very clear, straightforward and
unambiguous and demands
nothing other than the application of the literal and ordinary cannons of
statutory interpretation and I agree with them. It is settled law that in
the construction of a statute, the primary concern of the judge is the
attainment or ascertainment of the intention of the legislature by
examination of the language used therein. Where the language used in the
legislation or Statute or Constitution is clear, explicit and unambiguous,
as found in the instant case, the judge must give effect to it as the words
used speak the intention of the legislature.
That apart, the said provision
has been interpreted by this Court in the case of
Ugwu vs Ararume supra. I hold the
view that a literal interpretation of the provision of section 34 of the
Electoral Act, 2006 will not lead to absurdity or some repugnancy or
inconsistency with the rest of the legislation.
It is clear that section 34
provides that a political party intending to change any of its candidates
for any election conducted under the Electoral Act, 2006 shall inform the
Independent National Electoral Commission (INEC) of such change in writing
not later than 60 days to the election upon giving cogent and verifiable
reasons and that there shall be no substitution or change or replacement of
any candidate whatsoever after the date referred thereto, except in the case
of death of a nominated candidate. The section does not say that the
application to the Independent National Electoral Commission must be formal
but that if must be in writing. That being the case, I hold the view that a
letter conveying the intention of a political party to effect the change or
substitution of its nominated candidate within the specified time, such as
Exhibit D, in this case, will satisfy that requirement of application and as
such the view vigorously canvassed by the learned Senior Counsel for the
appellant that the application referred to in the section must be a formal
application is with respect, erroneous. What is required is that the
application must not be oral or verbal but must be in writing, giving cogent
and verifiable reasons, for the intended change or substitution.
The section also clearly
imposes a duty on such political party intending the change to comply with
that provision. The manner or mode of sending the information/application to
the independent National Electoral Commission is by writing. In short
section 34 is mandatory, not permissive as contended by learned Senior
Counsel for the respondents in this appeal.
Much time and energy have been
expended by learned Senior Counsel for the respondents in arguing the
obvious that the right to nominate, change or substitute candidates for
elections are the domestic affairs of the political parties admitting of no
interference from the judiciary and that that remains the object of section
34 of the Electoral Act, 2006. I use the word
"obvious" because that has been and still remains the law though by
introducing the words "cogent and
verifiable reasons"
for substitution the legislature has clearly created an exception to the
general rule or a condition precedent. I must repeat that section 34 of the
Electoral Act, 2006 has not taken away the power or right of political
parties to nominate or even
appoint candidates, depending on the provisions of their Constitution, to be
sponsored by the political party to contest any election under the Electoral
Act, 2006 or the right of the political parties to change, substitute or
replace such nominated candidate(s). What section 34(1) and (2) of the Act
is saying is that for such a substitution or change or replacement to be
legally effective or recognized by the Act, the change or substitution or
replacement must be done within 60 days to the election in question upon
application in writing by the political party desiring the
change/substitution which written application must contain
"cogent and verifiable reasons". I do not think that insistence on
compliance with the statutory requirement of the giving of
"cogent and
verifiable reasons"
amounts, by any stretch of imagination, to interference by the judiciary
with the domestic affairs of the political parties or their power to
nominate, sponsor or change or substitute any candidate for any election. To
argue that it does to me, smacks of nothing but arm twisting or outright
blackmail, apart from being a complete misconception of the issues involved
in the relevant section calling for interpretation/application.
The next question to be
answered is whether the 3rd respondent, in seeking to change or
substitute the appellant complied with the mandatory requirements of section
34 of the Electoral Act, 2006. In short, did the 3rd respondent
assign any
"cogent and verifiable" reason for the intended change or
substitution. The lower courts held that it did
but the appellant does not agree hence the further appeal to this Court.
It is not disputed that the
appellant was the duly nominated candidate of the 3rd respondent
for the election to the office of the Governor of Rivers State of Nigeria;
that within the sixty days allowed by section 34 of the Electoral Act, 2006
the 3rd respondent wrote exhibit D to the 1st
respondent intending to substitute the 2nd respondent for the
appellant for the above mentioned election; that the reason for the intended
change/substitution was stated in exhibit D as "error" j
in the submission of the name of the appellant to the 1st
respondent in the first place; the 1st respondent in compliance
with the request of the 3rd respondent changed or substituted the
name of the 2nd respondent for the appellant; that prior to the
actual substitution, the appellant being apprehensive of the threat of the
substitution instituted the present action in the Federal High Court, Abuja
claiming the reliefs earlier reproduced in this judgment, the rest is now
history. The question is whether the 3rd respondent, in the
circumstances of the instant case did give
"cogent and
verifiable reasons"
for the intended change or substitution of the appellant.
As stated earlier in this
judgment, the reason given in exhibit D is "error", just as was the case in
the case of Ugwu vs Ararume supra. In the case of
Ugwu vs Ararume (supra) this.
Court did hold that the reason of
"error" having regard to the facts of that case did not constitute
cogent and verifiable reasons for the change or substitution and therefore
declared the change or substitution null and void as the same failed to
comply with the provisions of section 34 of the Electoral Act,
2006. Is the reason of
"error" in the instant case cogent and
verifiable having regard to
the facts of the case? I do not think so, particularly as the 2nd
respondent was never a participant at the 3rd respondent's
primaries conducted to nominate a candidate for the Rivers State
Governorship election which was actually won, by an overwhelming majority of
votes, by the appellant,, whose name was thereby
forwarded to and accepted by the 1st respondent as the 3rd
respondent's candidate. So, as between the appellant and 2nd
respondent, the name of the appellant cannot, with any sense of
responsibility be said to have been forwarded by the 3rd
respondent to the 1st respondent as its candidate for that
election in error so as to constitute cogent and verifiable reason. The
error must therefore be from some other omission or commission by the 3rd
respondent whose duty it is to assign the cogent and verifiable reason.
Unfortunately the 3rd
respondent has not pleaded nor given evidence of any "error" in the instant
case, just as was the case in the case of Ugwu vs Ararume supra.
However, the 1st respondent did plead that the "error" arose from
the fact that the appellant was indicted by the EFCC for financial
impropriety during his tenure of office as the Hon. Speaker of the Rivers
State House of Assembly and that the report of the indictment was accepted
by the Federal Government. As found earlier, in this judgment no record of
the alleged indictment and acceptance of same by the Federal Government
exists. It is a settled principle of law that he who alleges must prove and
that where a party fails to adduce evidence in support of facts pleaded, the
pleadings are thereby deemed abandoned. In the instant case the 1st
respondent, upon application before the lower court introduced the
judgment of the Federal High Court in suit No.
FHC/ABJ/CS/74/2007 as fresh or additional evidence on
appeal in alleged proof of the fact of indictment and 'acceptance of same by
the Federal Government of Nigeria. I had earlier in this judgment
found and held that the said
judgment contained no such evidence as the court never dealt with the
issue of indictment at all.
Granted, for the purpose of
argument only, that there is an evidence of such an indictment, can that
without more be enough to satisfy the requirement of cogent and verifiable
reason for substitution or change of a nominated candidate for election? I
do not think so. In the first place, what is an indictment?
An indictment is defined by
Blacks Law Dictionary, 8th
Edition. page 788 as follows:-
"1.
The formal written
accusation of a crime, made by a grand jury and
presented to a court for prosecution against the accused person.
2.
The act or process of preparing or bringing forward such a formal
written accusation."
From the above, it is very
clear that an indictment is a formal charge or accusation against a person
before a court of law made in writing.
It does not extend to the trial of the person accused nor his being
found liable on the said charge or indictment. What is being proposed as
being the intention of the legislature under section 34(2) of the Electoral
Act, 2006 is that once there is a charge against a person whether framed up
or not he can be substituted by his political party without more. Is that
what the law says, particularly when one realizes that the word indictment
connotes the commission of crime. Should one be punished by substitution
before being tried and found liable by a court of law upon the said
indictment/charge? What of if the charge/indictment is a frame up for
political expediency?
There are many more questions
arising from accepting the existence of a charge or indictment against a
candidate as sufficient cogent and verifiable reason for substituting him
with another candidate than answers. In any event, I do not accept the
argument that a mere accusation or charge or indictment is sufficient for
the purpose of section 34 of the Electoral Act, 2006 having regard to the
requirement that the reason of indictment must be cogent and verifiable
particularly as the word "verify" connotes to prove to be true, to confirm,
to establish the truth of: to examine or test the correctness or
authenticity of something. If the word is used, as in the instant case in a
statute, it is presumed to have been used in its legal sense meaning to
confirm or substantiate by oath or affidavit - see
Action Congress vs INEC (2007) 12
NWLR (pt. 1048) 222 at 304.
The above being the position
it follows therefore that even if an indictment was proved to exist, there
is the additional requirement that it be proved to be true, which still does
not exist in this case.
It should not be forgotten
that the learned Senior Counsel for the respondents have argued that the
issue of indictment constitutes a very distinguishing feature in this case
vis a vis the case of
Ugwu vs Ararume supra thereby
rendering the Ararume's case
inapplicable. However, it has been demonstrated in this judgment that the
alleged distinction does not exist - it is a mirage. That being the case, it
is my considered view that there is no significant difference between the
facts of Ugwu vs Ararume supra
and the instant case particularly having regard to the fact that both cases
used the word "error" as the reason for seeking the change or substitution
of candidates. The two cases being similar, I hold the further view that the
principles of law decided or determined in the case of
Ugwu vs Ararume supra, by the
operation of the principles of judicial precedent or
stare decisis, apply to the facts
of the instant case and therefore the lower court was in grave error when it
held otherwise.
Before leaving the issue of
indictment, it is important to note that the issue of appellant's indictment
is, from the facts available on record clearly an after thought because it
appears to have emerged long after exhibit D was written giving the reason
of "error" for the substitution and much after the appellant had sued.
There is also the issue of
members of a political party being bound by the Constitution of the party
which is good law. I agree that article 21 of the Constitution of the 3rd
respondent provides, in effect, that a person who never participated
in a primary election can be adopted as a candidate for any election by the
party and that that being the contract between the parties the appellant is
bound by it and by extension the substitution of the 2nd
respondent for the appellant was valid. I have no quarrel with that
submission. It is still the same argument that a political party reserves
the power or right to nominate and change its candidate for any election.
What the argument seems to overlook is the fact that with the present state
of the law, particularly section 34 of the Electoral Act, 2006, that power
is exercisable subject to the giving of cogent and verifiable reasons for
the change or substitution. It is therefore no more business as usual.
There is the argument to the
effect that the right to nominate or change a candidate being that of a
political party, appellant has no justiciable civil right or any right
worthy of any judicial protection. I think that argument does not fully
appreciate the provisions of section 34 of the Electoral Act, 2006. As
stated earlier in this judgment, the section does not only provide that a
political party desiring to change or substitute its nominated candidate for
any election must do so 60 days to the election except where the change or
substitution is necessitated by the death of the nominated candidate, for
that substitution or change of candidate to be legal the political party
must assign cogent and verifiable reasons in writing to the "2nd
respondent, it also provides that if the change is not done 60 days to the
election or done less than 60 days to the election except where the
candidate died, no such change or substitution shall be allowed - see
section 34(3) of the Electoral Act, 2006.
It is clear that subsection 3
of section 34 crystallises the right of a nominated candidate to represent
his party at the election 59 days to the election since the party cannot, in
law, be allowed to effect any change or substitution of the candidate. I
hold the considered view that the subsection, apart from subsection 2,
confers a justiciable cause of action on the candidate sought to be
wrongfully changed or substituted.
The above notwithstanding, it
must always be remembered that the political parties have the power to
nominate and change or substitute any nominated candidate for any election
60 days to any election subject only to the giving of cogent and verifiable
reasons for the intended change or substitution. The political parties lose
the power or right to effect the change or substitution in any period less
than 60 days to the election except where the nominated candidate dies. It
will therefore be wrong for any candidate to say that a political party has
no right or power to substitute him 60 days to the election. It can do so
except where no cogent and verifiable reasons are given by the party for the
intended change or substitution. The right of a candidate to represent a
political party in any election becomes absolute and inviolate from 59 days
to any election. That accounts for the lower courts holding that the
substitution of the appellant was validly done as it was done sixty days to
the election and I hold the view that they are right in that respect only.
On issue No. 6, learned Senior
Counsel for the appellant submitted that the effect of declaring the
substitution of appellant null and void is that the name of the appellant
was never changed as the 3rd respondent's candidate for the
Rivers State Governorship election relying on
Adefulu vs Okulaja (1996) 9 NWLR (pt.
475) 668 at 694; that the 2nd respondent was declared the
Governor of Rivers State despite the pendency of the suit which is against
the principles of lis pendens;
that the respondents have demonstrated that they have no respect for the
rule of law, and should not be allowed to benefit from that conduct, relying
on Obi vs INEC (2007) 11 NWLR (pt.
1046) 565 at 645; that the court should set aside the declaration of the
2nd respondent as the Governor of Rivers State as the declaration
was predicated on a nullity; that irrespective of the reliefs being sought
by an appellant, this Court should invoke its general powers under section
22 of the Supreme Court Act and give appropriate and deserving orders to
meet the justice of the case, relying on
Dantata vs Mohammed (2000) 7 NWLR
(pt. 664) 176 at 220 per Ayoola. JSC;
Yusuf vs Obasanjo (2003) 9 - 10 S.C
53 at 94 per Tobi, JSC; Okoya vs
Santilli (1990) 2 NWLR (pt. 131) 72 at 207; Onuaguluchi vs Ndu (2001) 7 NWLR
(pt. 712) 309 at 319 - 320; Arcon vs Fassassi (No. 2) (1987) 3 NWLR (pt. 59)
1 at 4 - 5. Finally learned Counsel urged the court to resolve
the issue in favour of the appellant and allow the appeal.
On his part, learned Counsel
for the 1st respondent submitted that the submission of his
learned friend silk is completely untenable as the Governorship election had
taken place and the 2nd respondent had been declared the winner
and sworn in as Governor unlike in
Ararume's case where the election was yet to take place; that the name
of the appellant •was excluded from the ballot so he could not be declared
the winner of the election; the appellant had filed an election petition
against the 2nd respondent in respect of that election confirming
the fact that it was the 2nd respondent rather than the appellant
who won the election. Referring to section 140(1) of the Electoral Act,
2006, learned Senior Counsel submitted that the return of the 2nd
respondent can only be questioned before an election tribunal, not in this
Court; that section 22 of the Supreme Court Act cannot aid the appellant in
this case as the 2nd respondent had been duly elected and
declared winner and sworn in; that since this Court has no jurisdiction in
election matters such as in the instant case where appellant seeks to be
declared the Governor of Rivers State by operation of the powers of this
Court under section 22 of the Supreme Court Act, the said section of the Act
cannot be invoked and the case relied upon by counsel for the appellant in
inviting the court to so act are irrelevant as the powers can only be
invoked where this Court has jurisdiction in the matter, relying on
Madukolu vs Nkemdilim (1962) 1 All
NLR 587 at 585. Finally learned counsel urged the court to resolve the
issue in favour of the 1st respondent and dismiss the appeal.
On his part, learned counsel
for the 2nd respondent submitted that there are limits to the
remedies (if any) available to the appellant and that at best the appellant
is entitled only to damages if he establishes any fault against the 3rd
respondent on the authority of
Dalhatu vs. Turaki supra; that the appeal has been overtaken by events
as a result of a combination of events thereby rendering same academic, such
as the unchallenged dismissal of the appellant from the 3rd
respondent; the fact that, elections in issue had been held, the declaration
of the 2nd respondent as Governor; the existence of appellant's
election petition before the Election Tribunal have all rendered the reliefs
otiose and urged the court to dismiss the appeal.
Learned Senior Counsel for the
3rd respondent submitted that the arguments and reliefs sought in
issue 6 run contrary to the claim of the appellant before the lower courts;
that since the appellant was not a candidate at the election, it would be a
rape on democracy and grave injustice to declare the appellant Governor of
Rivers State and urged the court to dismiss the appeal.
The issue under consideration
deals with the general powers of this Court as contained in section 22 of
the Supreme Court Act and Order 8 particularly Rule 12(2) and (5) of the
Supreme Court Rules which provide as follows:-
8(12)
..............................................
(2)
The Court shall have power to draw inferences of fact and to
give any judgment and make
any order which ought to
have been given or made, and to make such further or other order as the case
may require, including any order
as to costs.
(5)
The powers of the Court under the foregoing provisions of this
rule may be exercised
notwithstanding that no notice of appeal or respondent's notice has been
given in respect of any particular
party to the proceedings in
that court, or that any ground for allowing the appeal or for
affirming or varying the decision
of that court is not specified in such a notice; and the court may make any
order, on such terms as the court thinks just, to ensure the
determination on the merits of the
real question in
controversy between the parties."
The above provisions
specifically show the enormity of the supervisory power of the Supreme Court
being the final court in the land, to ensure that the determination of cases
on appeal to it is reached on the merits of the real questions in
controversy between the parties which resulted in the litigation. The
expansive power of this Court as stated above is not in doubt and is
recognized by both counsel in this matter.
However, it is the case of the respondents that having regard to the facts
of the instant case, this court lacks the jurisdiction to make the order
being requested for by the appellant, that is a declaration that appellant
is the Governor of Rivers State particularly as this court is not the
appropriate Election Tribunal clothed with the requisite jurisdiction. I
must however observe that the learned Senior Counsel for the respondents
have used or employed the terms,
"election matter" and pre-election matter" to describe the action as
instituted by the appellant depending on the convenience of counsel having
regard to .the purpose of the presentation. The above notwithstanding, it is
not in doubt that the Federal High Court has the jurisdiction to hear and
determine the case of the appellant as couched in the reliefs claimed before
that court - at least it has not been argued that it has no such
jurisdiction. Equally not being disputed is the fact that the Court of
Appeal has the jurisdiction to hear and determine an appeal arising from the
decision of the Federal High Court on the case. The above being the case, it
follows therefore that this Court, which by Constitutional arrangement is
empowered to hear and determine appeals from the decision of the Court of
Appeal is eminently qualified to hear and determine the instant appeal and
as has been demonstrated in Order 8 Rules 12(2) and (5) of the Rules of this
Court has the additional powers to make consequential order(s) aimed at
ensuring that justice is done to the main questions or issues in controversy
between the parties. The question that arises therefore is not whether this
Court has the vires to make the
consequential order as requested but whether this is the appropriate case to
make such an order.
It has been submitted that the
relief being sought in this Court does not form part of the reliefs sought
in the lower courts and ought not to be granted. It is settled law that the
court is no father Christmas to grant to a party a relief not specifically
prayed for - see Ekpenyong vs Nyong
(1975) 9 NSCC 28; Kalio vs Kalio (1975) 9 NSCC 16; Union Breweries Ltd vs
Owolabi (1988) 1 NWLR (pt. 68) 128 at 135.
The appellant's Senior Counsel
does not deny the fact that the relief was being prayed for the first time
in this Court but argued that the said relief is a necessary consequence
flowing from a declaration of the nullity of the purported substitution or
change of the appellant as the nominated candidate of the 3rd
respondent for the Rivers State Governorship election which this Court is
empowered to grant by virtue of order 8 Rule 12 (2) and 5 of the rules of
the court.
Authorities abound to the
effect that the court can, as in any other equitable remedy, grant an order
of injunction where
is
not specifically claimed but appears to it incidentally necessary so as to
protect established right on record - see
Williams vs Showden (1880) AN 124;
Atolagbe vs Shorun (1985) 1 NWLR (pt. 2) 360. A consequential order is
one giving effect to the judgment which it follows; it is not an order made
subsequent to a judgment, which detracts from the judgment or contains
extraneous matters - see Obayagbona
vs Obaze (1972) 5 S.C 247. In
Garba vs University of Maiduguri (1986) 1 NWLR (pt. 18) 550 this Court
held that where a person has not specifically asked for a relief from trial
court, a trial court has power to grant such a relief as a consequential
relief - see Okupe v F.B.I.R (1974) 1 All NLR 314.
In the instant case, it has been held that the substitution of the appellant
is null and void. This means that in the eyes of the law appellant was never
substituted and therefore remained the nominated candidate of the 3rd
respondent for the Rivers State Governorship election. The only way the
substitution would have been valid is if the 3rd respondent had
not only
applied
for same 60 days to the date of election but has proffered cogent and
verifiable reason for the same. At the moment, the 60 days to the election
had long gone and in fact the election held making it impossible for the 3rd
respondent to effect any further substitution. Meanwhile the respondents
have presented the court with a fait
accompli leaving the appellant with an empty victory except this Court
can invoke its expansive supervisory power to do justice to the parties in
the determination of the questions or issues in controversy between the
parties. I do not see any clearer instance worthy of the exercise of the
powers of this Court under order 8 Rule 12 (2) and (5).
Learned Senior Counsel for the
appellant has urged the court, as a ground for granting the consequential
orders sought in this appeal to invoke the principle of
lis pendens, as the alleged
substitution of the 2nd respondent for the appellant was done
during the pendency of the action at the trial court. I do not agree with
the learned Senior Advocate on that point. As can be gathered from the
record, the action of the appellant was pre-emptive in that it was taken
initially to prevent the 1st and 3rd respondents from
substituting the appellant. Unfortunately, it was instituted before the
expiration of the 60 days allowed the 3rd respondent by section
34(1) of the Electoral Act, 2006 to effect the substitution. In short, at
the time the action was instituted, the 3rd respondent still had
the right/power under the law to effect the substitution though subject to
the giving of cogent and verifiable reasons for same.
Lis Pendens therefore cannot
operate to deny the 3rd respondent of that right/power to effect
the change or substitution. In the circumstance it is my considered view
that the decision is better anchored on the fact that there being no cogent
and verifiable reason for the change or substitution, the purported change
or substitution was null and void and of no legal effect whatsoever thereby
opening the door to this Court to consider the consequential orders to be
made in the circumstances.
I hold the considered view
that justice demands that the consequential order sought by the appellant in
the instant appeal be ordered as prayed and consequently grant same. I
therefore resolve the issue under consideration in favour of the appellant.
On the cross appeals, learned
Senior Counsel for the 2nd respondent/cross appellant, whose
cross appeal is hereby treated as the first cross appeal, has identified
three issues for determination, to wit:
"66.
Whether the Court of
Appeal was correct when it held
that the appeal in issue did not abate upon the 2nd
respondent being sworn in as the
Governor of Rivers State whereupon he acquired constitutional immunity
pursuant to section 308 of the 1999 Constitution ?
67.
Whether the Court of Appeal was correct in law when after finding
that the entire gamut of appellant's dispute arose from nomination and
sponsorship (matters within the domestic sphere of the 3rd
respondent) it did not rule the entire dispute non justiciable?
68.
Whether the proceedings are not void ab initio on the basis
that evidence viva voce was not taken in a suit commenced by writ
of summons/statement of
claim in respect of
reliefs that were all declaratory
in nature."
In arguing the cross appeal,
it is the submission of learned Senior Counsel that the Court of Appeal was
in error when it held that the appeal did not abate upon the 2nd
respondent being sworn in as the Governor of Rivers State at which point the
2nd respondent is said to have acquired constitutional immunity
by virtue of the operation of section 308 of the 1999 Constitution; that the
lower court erred in law when after finding that the gamut of the
appellant's dispute arose from nomination and sponsorship which are matters
within the domestic affairs of the 3rd respondent it failed to
rule the dispute non justiciable; and that the proceedings were null and
void on the ground that evidence viva voce was not taken at the trial in a
suit commenced by writ of summons and statement of claim having regards to
the declaratory nature of 'the reliefs claimed by the appellant,
notwithstanding that the parties appeared to have consented. He urged the
court to allow the cross appeal.
On his part, learned Senior Counsel for the 3rd respondent/ cross
appellant in respect of the 2nd cross appeal identified a single
issue for determination which is as follows:-
"Whether the court below was right in law to hold that the
appeal before it was an election related matter and having so held went
further to hold that the second respondent was not entitled to enjoy the
benefits of the immunity conferred on him by virtue of section 308 of the
Constitution of the Federal Republic of Nigeria, 1999 having taken the oath
of office and the oath of allegiance as the Governor of Rivers State and
placing reliance on the cases of
AD v. Fayose (2004) 8 NWLR
.fpf. 876)
p. 639 and Obi v.
Mbakwe (1984) I SCNLR 192
to arrive at this conclusion."
In arguing the issue learned Senior Counsel, in a rather very lengthy brief
spanning fifty pages, went on to define an election petition by citing many
legal authorities including Onitiri
vs. Benson (1960) 5 FSC 150 at 153; Oyekan vs Akinjide (1965) NSCC 152 at
153 - 154; Unongo vs. Aper Aku (1985) 6 NCLR 262 at 270; Awuse vs Odili
(2004} 8 NWLR (pt. 876) 481 at ^508 - 509; Obih vs Mbakwe (1984) 1 SCNLR 192
at 230; section 129 fll and (2) of the Electoral Act, 1982; and section
151 of the Electoral
Act, 2006. As to the question whether the instant appeal qualifies as an
election petition, learned senior counsel answered in the negative after
citing and relying on sections 140 of the
Electoral Act, 2006; sections
141, 144, 145 and 147 of the Electoral Act, 2006; that this Court lacks the
jurisdiction to determine election petitions, relying on section 285 (2) of
the 1999 Constitution; section 246 (1) of the 1999 Constitution;
Umanah vs. Attah (2006) 17 NWLR (pt.
1009) 503; Okonkwo vs Ngige (2007) 12 NWLR (pt. 1047) 191 and Awuse vs Odili
(2003) 18 NWLR (pt. 851) 116. Finally learned Senior Counsel submitted
that an incumbent governor such as the 2nd respondent is entitled
to immunity under section 308 of the 1999 Constitution, relying on
Tinubu vs IMB Securities PLC (2001)
16 NWLR (pt. 740) '670 at 693 - 695 and urged the court to allow the
cross appeal.
On his part, learned Senior
Counsel for the appellant/cross respondent submitted the following three
issues for the determination of the cross appeals:
"(1)
Whether plaintiff's suit
being an election related matter and one challenging the process by
which 2nd
respondent was made to substitute
the appellant, which case was
filed before election, can be
defeated by reason of the Cross-Appellant becoming the Governor of a state.
(2)
Whether Plaintiff/Appellant/Cross-Respondent's Brief in this suit is
justiciable;
(3)
Whether the procedure adopted in determining the plaintiff's claim
can vitiate the plaintiff's action."
I have to observe that the
grounds of appeal in the cross -appeal are those filed by the cross
appellants and that none was filed by the cross respondent. One then wonders
under which of the grounds of cross appeal cross respondent's issue No. 2
can be said to have emanated. There is nothing to ground the said issue
which is accordingly discountenanced by me as a consideration of same will
definitely lead to a colossal waste of time serving no useful purpose at
all.
In arguing the relevant
issues, learned Senior Counsel cited and relied on section 308 of the 1999
Constitution but submitted that the courts have been consistent in holding
that the said section 308 of the 1999 Constitution does not apply to
election matters, relying on Obi vs
Mbakwe supra; Unongo vs Aku
supra; and AD vs Fayose supra;
Dalhatu vs Turaki (2003) FWLR (pt.
170) 1378 at 1396; that parties did not protest the procedure adopted at
the trial of the matter and can therefore not be heard to complain at this
stage in the proceedings; in any event, that documents were tendered at the
trial by consent which constitute evidence on which to ground the
declaratory reliefs and urged the court to dismiss the cross appeals.
The position of the cross
appellants was adopted and supported by the 1st respondent/cross
respondent in its brief filed on 18/10/07.
Section 308 of the 1999
Constitution provides as follows:-
“308.
(1)
Notwithstanding anything to the contrary in this Constitution,
but subject to subsection (2) of this section -
(a)
no civil or criminal proceedings shall be
instituted or continued against a person to whom this section applies during
his period of office;
(b)
a person to whom this section applies
shall not be arrested or imprisoned during that period either in pursuance
of the process of any court or otherwise; and
(c)
no
process of any court requiring or compelling the appearance of a person to
whom this section applies, shall be applied for or issued:
Provided that in ascertaining
whether any period of limitation has expired for the purposes of any
proceedings against a person to whom this section applies, no account shall
be taken of his period of office.
(2)
The provisions of
subsection (1) of this section shall not apply to civil proceedings against
a person to whom this section applies in his official capacity or to civil
or criminal proceedings in which such a person is only a nominal party.
(3)
This section applies to a person holding the office of President or
Vice-President, Governor or Deputy Governor; and the reference in this
section to "period of office" is a reference to the period during which the
person holding such office is required to perform the functions of the
office.”
From the above provisions, it
is very clear that section 308 of the 1999 Constitution confers immunity on
the 2nd respondent in an appropriate case and circumstance - see
the case of Tinubu vs IBM securities
PLC supra at 693 - 695 where the court, per IGUH/JSC stated the law as
follows:
"Turning now to section 308(1)(a)
of the 1999 Constitution, if is beyond dispute that the present suit
instituted by the plaintiff/respondent was to enforce the repayment of an
overdraft facility granted to the 1st defendant. It is also clear
that the action was instituted against the appellant in his personal
capacity and did not arise by virtue of his position as the Governor of
Lagos State. It is admitted by both sides that the appellant as at the time
the decision of the Court of Appeal in issue was handed down, was and still
remain the Governor of Lagos State. Section 308
(1)(a) of the Constitution
of the Federal Republic of Nigeria, 1999 provides in the clearest possible
language that notwithstanding anything to the contrary in that Constitution,
no civil or criminal proceedings shall be instituted or, if already
instituted, continued against any person to whom that section of the
Constitution applies during his period of office ... section 308(3) provides
that the said section 308 of the 1999 Constitution applies to a person
holding the office of President or Vice-President, Governor or
Deputy-Governor. Section 308(2) however lays down that the provision
of the said subsection (1) of section 308 shall not apply to civil
proceedings instituted against any of the relevant public officers in his
official capacity or to civil or criminal proceedings in which such a person
is only a nominal party... if was during the pendency of this appeal that
the appellant was sworn in as the Governor of Lagos State and it was
thereafter that the question whether or not the suit could lawfully be
continued against him as the Governor of Lagos State arose before the Court
of Appeal. The appellant remain the Governor of Lagos State till this day.
The claim against him did not arise by virtue of any act executed by him in
his official capacity as Governor of Lagos State nor was he, as the said
Governor, sued in the action as a nominal party. It is thus clear that
applying the mandatory provisions of section 308(1) (a) of the 1999
Constitution no civil proceedings may be instituted or, if already
instituted as in the present action, shall be continued against him while he
holds the office of the Governor of Lagos State ... It suffices to say that
this is a suit in which the appellant is sued as a defendant. The suit
therefore falls directly within the ambit of the provision of section 308(1)
(a) of the 1999 Constitution. Nor do I accept that the appellant may waive
the immunity granted to him under section 308(1)(a)
of the 1999 Constitution. In my view, the immunity granted to the incumbent
of the relevant office under section 308(1)(a) of the Constitution
prescribes an absolute prohibition on the courts from entertaining any
proceedings, civil or criminal, in respect of any claim or relief against a
person to whom that section of the Constitution applies during the period he
holds such office. No question or
waiver of the relevant
immunity by the incumbent of
the offices concerned or, indeed,
by the court may therefore arise.
In my view, the Court of
Appeal was absolutely right to have declined to entertain the appellant's
appeal pending before it as to do otherwise would amount to continuing the
plaintiff/appellant, a suit which under section
308(1)(a) of the 1999
Constitution shall not be continued against the appellant while he remained
the Governor of Lagos".
The above position is a
general principle of law, which like every such principle admits of certain
exception(s) such as that the constitutional immunity so conferred does not
extend to election matters but is limited to purely civil and criminal
matters neither does the immunity create a collorative duty on the occupant
of that office not to institute action(s) against any party while in that
office - see Global Excellence
Communications Ltd & ors vs. MR DONALD DUKE (2007) 16 NWLR (pt. 1059) 22.
I
hold the view that
in an election matter or election related matter before the courts, the
right of the Governor to remain in office is very much in dispute.
In the instant case, I agree with the lower court that the matter is
an election related mater or dispute as it involves the issue as to who was
the nominated candidate of the 3rd respondent for the Rivers
State governorship election held on 14/4/07. While appellant claims to be
the candidate, the 2nd and 3rd respondents claim that
appellant was duly substituted with the 2nd respondent and that
it was therefore the 2nd respondent that was the candidate of the
party at the election. If one says that such a matter is not an election
related, I wonder what else could be better so related. I hold the further
view that if the 2nd respondent, or any State Governor for that
matter in similar situation, is considered to be immune from court
proceedings it would send wrong signals to the polity as it would encourage
sitting Governors to flout the electoral laws/processes and regulations to
the disadvantage of their opponents and get away with it under the guise of
constitutional immunity. I hold the view that section 308 of the 1999
Constitution was not crafted or designed to encourage injustice or deprive
an aggrieve party the exercise of his right to a remedy under the law.
That brings me to the effect
of the proviso to section 308 of the 1999 Constitution which suspends the
principles of limitation of action or time during the period the person
concerned occupied the office. What that means is that time would begin to
run or continue running after the occupant of the relevant office to which
the immunity attaches, leaves office. It is settled law that by
constitutional arrangement, a Governor remains in
office for a period of four years from the date he swears to the oaths of
office and allegiance. In which case an action against such an occupant
cannot be commenced or continued until after the four years tenure has
expired. Unfortunately in the instant case, the
lis is the tenure and would
become spent at the expiration of the four years. So to say that section 308
of the 1999 Constitution applies to the instant case is to deprive the
appellant of the right to have the dispute as to who is entitled to be or
remain the Governor of Rivers State settled once and for all and before the
expiration of the tenure. It would amount to gross
injustice in
the circumstances of the case and this Court will not be associated
with that colossal error.
On the issue as to whether the
proceedings in the lower court is a nullity on the ground that no oral
evidence was tendered at the trial, I hold the firm view that it is
misconceived as there is evidence on record that exhibits were tendered and
admitted from the Bar which exhibits, including exhibit D were used in the
proceeding leading to and including the judgments of the courts. It is
erroneous to argue that evidence is limited to oral testimony whereas it
includes documents and objects duly tendered and admitted as exhibits in any
legal proceedings.
In short, I find no merit in
the cross appeals which are accordingly dismissed.
In conclusion, 1 agree with my
learned brother Oguntade, JSC that the appeal is meritorious and should be
allowed while the cross appeals are without merit and ought to be dismissed.
I accordingly allow the appeal and dismiss the cross appeals with costs as
assessed in the said lead judgment.
Appeal allowed. Cross appeals
dismissed.
Reasons for Judgment
Delivered by
Ibrahim Tanko Muhammed J.S.C
On the 25th day of October, 2007, this court allowed the main
appeal, made some consequential orders and dismissed the cross-appeals of
the 2nd and 3rd respondents/cross-appellants. I
deferred giving my reasoning to today. I now give my reasoning herein below.
From the facts contained in the printed record of appeal placed before this
court, the appellant's story of the case is that, the appellant was the duly
nominated River State People's Democratic Party (PDP) candidate for the
governorship election scheduled for the 14th of April, 2007. He
was a member of PDP and was elected two times as a member and speaker of
Rivers State House of Assembly under the platform of the PDP. Before he
became the candidate of PDP, he went through party screening, clearance and
primaries. Upon being screened and cleared to contest the primaries, the
appellant contested the party primaries with about six other governorship
aspirants and came first with six thousand five hundred and twenty seven
votes (6,527). Following the conclusion of the party primaries, the national
chairman and national secretary of PDP submitted plaintiff's name and that
of Tele Ikuru as the PDP's governorship and ,
deputy candidates respectively for River State for the April 2007
governorship election to the Independent National Electoral Commission
(INEC), the defendant/1st respondent. The defendant upon receipt
of the name of the appellant/plaintiff published on their notice board and
went further to publish the information on sworn affidavit in support of the
particulars of the appellant in their offices in all the Local Government
Areas in River State. The plaintiff/appellant averred that on the 16th
of January, 2006, the defendant started what it called the verification of
the documents of the candidates of all political parties in Nigeria. He went
through INEC mandatory screening exercise on 21st day of January,
2007. the plaintiff's name and that of his running mate were the only names
submitted to INEC as governorship and deputy governorship candidates
respectively of PDP for River State in respect of April 14th 2007
governorship election. The plaintiff averred further that the verification
exercise mentioned above will last for ten days (16th – 26th
January, 2007) and between 29th January and 12th of
February, 2007, the defendant will start disqualifying candidates in a
manner contrary to the Electoral Act,
2006 which says that only a court order can disqualify a duly nominated
candidate of a political party. Under the
Electoral Act, 2006, the
plaintiff asserted that 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 plaintiff to the defendant. The
plaintiff avers that he is very sure that he has not committed any offence
to warrant disqualification. The plaintiff alleged that he would suffer
irreparable and irretrievable damages if his name was wrongfully removed and
a new name was brought to INEC by the party. The plaintiff averred that
under the Electoral Act, 2006, a political party is not allowed to change or
substitute any of its candidates once it is 60 days to a general elections
and by 12th of February, 2007, it will be 60 days to the April
2007 governorship election. The plaintiff said that since the submission of
his name and the subsequent publication of his name no person had challenged
the veracity of the information subscribed and no High Court had issued an
order disqualifying him or his running mate from contesting the April, 2007
governorship election in River State. He alleged further that INEC was about
accepting the substitution of his name without any cogent or verifiable
reasons and without a court's order to that effect. Unless and until the
respondents were restrained by the trial court, the plaintiff's name might
be removed without cogent and verifiable reasons as stipulated under the
Electoral Act, 2006. The
plaintiff made the following claims in his amended statement of claim before
the trial court:
“i.
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 if the candidate is disqualified by a Court
Order.
ii.
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.
iv.
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).
iv.
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.
v.
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 disqualify(sic) and
it is only after a candidate is disqualify(sic) by a Court order, that the
Independent Nations Electoral Commission (INEC) can change or substitute a
duly nominate candidate.
vi.
A declaration that there are no cogent and verifiable reasons for the
defendant to change the name of the plaintiff with that of the 2nd
defendant candidate of the People's Democratic Party (PDP) for the April,
13, 2007 governorship Election in River State.
vii.
A declaration that it is unconstitutional, illegal and unlawful for
the 1st and
3rd
defendants
as the governorship candidate of People's Democratic Party (PDP) for River
State in the forthcoming governorship election in Rivers State, after the
plaintiff has been duly nominated and sponsored by the People's Democratic
Party as its candidate and after the 1st defendant has accepted
the nomination and sponsorship of the plaintiff and 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.
viii.
An order of
perpetual injunction restraining the defendants jointly and severally by
themselves, their agents, privies or assigns from changing or substituting
the name of the plaintiff as the River State People's Democratic Party
governorship candidate for the April, 2007 River State Governorship 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”.
Meanwhile, leave was sought for and granted by the trial court on the 13th
day of February, 2007, for the joinder of the 2nd and 3rd
defendants as parties to the suit. The 2nd and 3rd
defendants/respondents filed and served their respective statements of
defence. Each of the defendants denied the allegations of the
plaintiff/appellant. The appellant filed a reply
to each of the defendants statements of defence.
Due to the urgent nature of the action, the trial court granted leave to the
parties to formulate and file issues for determination in order to save
time.
On
the hearing date, learned counsel for the respective parties adopted their
submissions in their respective briefs and made further oral amplification
on some points. On the 15th day of March, 2007, the learned trial
judge, B. F. M. Nyako, J. delivered her judgment. The learned trial judge
held, inter alia, as follows:
"I believe that the framers of the law particularly
wants (sic) Independent National Electoral Commission to be able to
verify or confirm the reason proffered for the intention to substitute. If
however Independent National Electoral Commission is able to verify the
reason from the reason 'error' (sic), then I do not see how the court can
question their verification or acceptance of the substitution.
No matter how it is couched the final say as to whom a political party
sponsors for an election is their ultimate decision. When they run foul of
the procedure the remedy is not for the court to substitute a candidate for
it. No
its folly will be in
not fielding a candidate at all.
Independent National
Electoral Commission has not told us that they were not able to
verify the cogent reason of error given to it by the defendant for wanting
to substitute its - - -candidate. That the plaintiffs name was in same
indicted list is not before the court and I shall refrain from touching on
that extensive issue.
On Independent National Electoral Commission acting on Exhibit D while, the
case is sub-judice I find that that is a reprimandable act and the
proper thing to have done is await the outcome of the suit and on the
authority of the case of Ojukwu v Government of Lagos State, any
action done pursuant to exhibit D while this case is subjudice is hereby set
aside.
The only time the court will interfere with the candidates of a political
party by virtue of section 34(1) and (2) is when the procedure is not
complied with."
Consequent upon the above findings, the learned trial judge arrived at the
following conclusions:
"Consequent upon all the above and all the reasons and conclusions in the
case of Senator I. Ararume (supra) I can only find that
the submission of the name of the 2nd defendant in
replacement for the plaintiff was done within time.
Secondly, any action taken by the 1st defendant pursuant to
exhibit D while this case is sub-judice is set aside.
Thirdly, Independent National Electoral Commission has the
responsibility to
verify the reason given to it by a political party for wanting to change or
substitute its candidate for another and if they require more particulars to
so verify it is for it to ask for more particulars and not for the court."
The learned trial judge in the end granted some of the reliefs sought and
refused others.
Dissatisfied with the trial court's decision, the plaintiff as appellant,
appealed to the Court of Appeal, Abuja Division (Court below). The 2nd
and 3rd defendants filed notices of cross-appeal as well. Learned
counsel for the respective parties filed and exchanged briefs in respect of
the main and cross-appeals. A definite date for hearing the appeals, i.e. 11th
April, 2007, was set down.
On the said hearing date however, both 2nd and 3rd
respondents filed a motion on Notice, each, praying for an order of court
striking or dismissing the appeal for lack of jurisdiction. The grounds upon
which both motions were premised were given as follows:
1.
"The appeal is now
incompetent by reason of the expulsion of the appellant/respondent from the
Peoples Democratic Party (PDP) thereby making the outcome of the suit a mere
academic exercise.
2.
The appellant/respondent has no locus standi to continue with the
prosecution of this appeal by reason of his expulsion from the Peoples
Democratic Party."
Because of the fundamental nature of the issue of jurisdiction raised by the
motions first to enable it ascertain whether or not it had jurisdiction to
proceed with
the appeals. Accordingly, learned counsel for the respective parties made
their oral submissions in respect of the two motions.
After having considered the affidavit evidence and the submissions of
respective counsel for the parties, the court below, per Omoleye, J.C.A,
held as follows:
"Consequent upon the
totality of my above
reasoning and conclusions, I hold that
because there
is no
longer in existence any
relationship and dispute between the appellant and the respondents in view
of the reliefs being sought by the appellant, this court has no jurisdiction
to adjudicate upon the appeal.
All the issues in the substantive appeal and the cross-appeals cease to be
live and any consideration
of them will not just amount to
mere expression of
opinion, a moot
debate and
academics which activities courts are precluded
from engaging
in,
it will indeed be
an exercise in futility, a further waste of precious judicial time, energy
and resources........The Applications of
the 2nd
and 3rd respondents are meritorious and they succeed. The Appeal
No CA/A/70/07 and the Cross-Appeals
are hereby struck out for incompetence...."
Adekeye and Aboki, J.J.C.A concurred with the above decision.
Dissatisfied with the above ruling the respondent/appellant cross respondent
appealed to this court. His Notice of Appeal which contained twelve grounds
of appeal is contained on pages 412 - 418 (1) of Vol. (ii) of the Record of
Appeal. I shall refer to this appeal simply as "the 1st appeal."
Upon hearing the learned counsel for the respective parties, this court, on
the 11th day of May, 2007, delivered its judgment as follows:
"It is ordered
1.
that the Court of Appeal was in error in
declining jurisdiction to hear the appeal and the Cross-Appeal on merit; and
2.
that the matter be remitted to the Court
of Appeal, Abuja to hear the two appeals expeditiously."
Before the hearing of the two appeals by the court below, a Motion on Notice
was filed by the learned SAN, J. B. Daudu for the 2nd respondent
asking the court below to grant him the following reliefs:
1.
"An order of this
Honourable Court staying further proceedings in this appeal (just remitted
for hearing by order of the Supreme Court dated the 11th of May,
2007) pending the delivery of the full judgment which will provide the basis
of the determination of the appeal by way of reasons for the judgment
(as was announced by Hon. Justice
A. I. Katsina~A!u (presiding) in open court)
Alternatively
2.
An order of
this Honourable Court staying further proceedings in this appeal,
particularly the hearing of the appeal until the Supreme Court is approached
by any of the parties to apply the provisions of Order 8 Rule 16 to correct
the clerical error in her judgment to the effect that the pronouncement of
Katsina-Alu, J.S.C made in open court that reasons for the judgment will be
provided at a later date, which pronouncement was not reflected in the
certified copy of the proceedings of 11th of May
2007
be
reflected in
the said
judgment.
3.
And for such further or
other orders as this Honourable Court may deem fit to make in the
circumstances."
The grounds upon which the application was premised were as follows:
i.
"By the combined effect of
the provisions of the 1999 Constitution, Supreme Court Act and Rules made in
that behalf, together with the Court's practice, judgment of court must
demonstrate in full a dispassionate consideration of the issues properly
raised and heard and must reflect the results of such an exercise.
ii.
Because of the variety of
issues put before the Supreme Court as demonstrated by exhibits 1-4 annexed
to this application, this Honourable Court cannot carry out her
constitutional functions of hearing appeals from the High Court without
knowing how and where she was faulted in her previous judgment so as to
avoid a situation where the mistakes (if any) made in the court's decision
now overturned is not repeated.
iii.
Fundamental jurisdictional
issues were raised before the Supreme Court, which also affects the
jurisdiction of this Honourable Court particularly in respect of post
election matters and which issues were not adverted to in the Supreme Court
judgment, rendering them liable to be raised again before the Court of
Appeal.
iv.
This appeal
is therefore, for the foregoing reasons not ripe for hearing."
After considering the affidavit evidence of the parties and the oral
submissions made by learned Senior counsel for the respective parties, the
court below, per R. D. Muhammad, J.C.A concurred by Adekeye, Omoleye, Aboki
and Uwa, J.J.C.A, granted the application by making the following order:
"That proceedings in this appeal, particularly the hearing of the appeal is
hereby stayed until the Supreme Court is approached by the
respondent/applicant to apply the provisions of Order 8 Rule 16 to correct
the clerical error (if any) in her judgment to the effect that the
pronouncement of Katsina-A!u, J.S.C made in open court that reasons for the
judgment will be provided at a later date, which pronouncement was
not reflected in the certified copy of the proceedings of 11th
of May, 2007 be reflected
in the said judgment.
The respondent/applicant is ordered to file his application at the Supreme
Court within seven days from today."
Dissatisfied with the above order, the appellant again appealed to this
court (Notice and Grounds of Appeal are on pages 535 - 537 of Vol. III of
the record of appeal}. This court again ordered the court below that this
appeal and cross-appeal be heard expeditiousiy as previously ordered and
that Justice must not only be done, it must be seen to be done. This is what
I call "the 2nd appeal."
The main appeal and the cross-appeals before the court below were finally
determined. The main appeal was dismissed for lacking in merit and the cross
- appeals succeeded in part. It is against this that the appellant filed his
appeal to this court.
The parties filed and exchanged briefs of argument. Issues formulated by the
parties were well set out by my learned brother Oguntade in his judgment. I
need not reproduce them. My learned brother had also painstakingly
summarized the submissions of all the respective learned senior counsel for
the respective parties. Unless where necessary, I need not make another
summary.
Both the 1st, 2nd and respondents filed separate
Notice of preliminary objection against the hearing of the appeal. The
grounds upon which each of the objections was raised were fully quoted by my
learned brother in his judgment. I need not repeat them here. I am also
contended with the way the preliminary objections were handled by my learned
brother.
Now, considering the issues formulated by the appellant, issue one is on the
propriety or otherwise for the court below to admit in evidence on appeal
the ruling of an Abuja Federal High Court in suit No
FHC/ABJ/C5/74/2007 delivered on 30th March, 2007. The first
respondent prayed the court below for the following:
"An order granting leave to the 1st Respondent/Applicant to
adduce further evidence
in this Appeal by tendering certified true copy of judgment in Suit No:
FHC/ABJ/CS/29/2007 between Rt Hon. Chibuike Rotimi Ameachi
v (1)
Attorney General of the Federation (2) Economic and Financial Crimes
Commission (3) Independent National Electoral Commission (4) Peoples
Democratic Party (5) Celetine Omehia delivered by Federal High Court Abuja
by Kuewumi, J. on 30th March, 2007."
The grounds upon which the application was made were as follows:
"1.
The evidence sought to be
led on Appeal was not available at the time of the trial or during the trial
but came after the trial or hearing and judgment.
2.
The evidence will assist in determining one way or the other the
issue of indictment and the challenge to same and will generally meet the
ends of justice."
It is to be recalled that when the issue of indictment of the appellant was
averred to in the statement of defence of the 1st respondent
(para 7 of page 87 of the record) and the reply thereof by the appellant
(para 1 of pages 137 of the record), the trial court held as follows:
"That the plaintiff's name was in same indicted list is not before the court
and I shall refrain from touching on that extensive issue."
I think the main issue in contention here is not whether the appellant was
indicated or not. Rather, the issue is whether it was correct for the court
below to admit in evidence the ruling of the Abuja Federal High Court in
suit No FHC/ABJ/C5/74/2007 delivered by Kuewumi, J; on the 30th
day of March, 2007. Order 19(2) of
the Court of Appeal Rules 2002 provides:
"(2) The court shall have power to receive further evidence on questions of
fact either by oral examination in court, by affidavit or by deposition
taken before an examiner or commissioner as the court may direct, BUT IN THE
CASE OF AN APPEAL TRIAL OR HEARING of any cause or matter on the MERITS NO
SUCH further evidence (other than evidence as to matters which have occurred
after the date of the trial or hearing) shall be admitted except on special
grounds."
(emphasis added)
It is now trite that for an appeal court to admit additional evidence of
facts on appeal, there must exist special
grounds. In Asaboro v Aruwaji (1974)
1 All NLR (Pt.1) 140, such special grounds were stated as follows;
i.
The evidence sought to be
adduced must be such as could not have been, with reasonable diligence,
obtained for use at the trial.
ii.
The evidence shall be such
as if admitted, it would have an important not necessarily crucial, effect
on the whole case, and
iii.
The evidence must be such
as apparently credible in the sense that it is capable of being believed and
it need not be incontrovertible,
iv.
The additional evidence may
be admitted if the evidence sought to be adduced would have influenced the
judgment at the lower court in favour of the applicant had it been available
at the trial court.
v.
The evidence should be
weighty and material, where evidence sought to be admitted is irrelevant and
immaterial, it will be rejected.
See: Owatta v Anyizor (1993) 2 SCNJ 1
at pp 12-13; Obasi v Onwuka (1987) 2 NSCC, 981; A-G Federation v Alkali
(1972) 12 SC.
In its reasoning process, the court below, after stating the correct
position of the law, stated further:
"The
application for leave
to adduce further
evidence on appeal is not one of Regular
applications in
the judicial
process, it is the procedural practice in the Nigerian adjectival law that
parties should adduce all the
evidence they need or
require in the trial court, it
is the court that has jurisdiction to hear further evidence
on appeal
except in
very compelling circumstances
such as........... In
the instant
case the
document sought
to be brought in this
document sought to
be brought in this appeal
by way
of further
adduced evidence
came into
existence on 30/3/07.
Hearing was completed and judgment
delivered in this case before
the trial court on
15/03/07............ The
objection is
overruled while the
document, the Ruling
of the lower court in suit No FHC/ABJ/C5/74/2007 delivered on the 30th
of March, 2007 is hereby admitted as part of evidence in this appeal."
(underlining supplied for emphasis)
The affidavit evidence laid by the parties before
the court below, and upon which that court arrived at its conclusion is
worth looking at. The 1st respondent applicant averred as
follows:
1.
That I am informed by the Senior Counsel for the 1st
Respondent/Applicant Chief Amaechi Nwaiwu, SAN whom I verily believe as
follows:-
(a)
That he did not participate in the trial in the Court below but was
only briefed on 3/4/2007.
(b)
That in the court below, the issue of indictment of the
2nd Defendant/Appellant
by the Economic and Financial Crimes Commission (EFCC) and the acceptance of
the report by the panel set up by the Federal Government was raised, but no
oral evidence was taken.
(c)
The Plaintiff/Appellant challenged his indictment
(d)
That in Suit No FHC/ABJ/CS/74/2007 between Rt. Hon.
Chibuike Rotimi Amaechi v Attorney General of the Federation and 3 others,
the Appellant challenging his indictment and disqualification by the 1st
respondent/Applicant the suit was dismissed on 30/3/2007. The certified true
copy of the Ruling is hereby exhibited and marked as Exhibit "A".
(e)
That the evidence sought to be led was not available at the time of
the trial or during the trial but came after the trial or hearing and Ruling
in the said suit No FHC/ABJ/CS/74/2007.
(f)
The evidence sought to be led will assist in determining one way or
the other the issue of indictment and will generally meet the ends of
justice.
(g)
That the evidence sought to be admitted is credible and capable of
being believed.
(h)
That the evidence if admitted would have an important effect on the
whole case."
The appellant as respondent to the application filed a counter - affidavit
in which he averred as follows:
1.
"That the 1st
Respondent was at all time maternal represented by counsel at the lower
court.
2.
That the issue of indictment raised by the 1st Respondent
was never proved before the trial court.
3.
That the 1st
Respondent had all the opportunity to call oral evidence if thought
necessary but chose to abandon the issue of indictment for that of "error"
advanced by the 3rd Respondent
4.
That the issues for
determination formulated by the parties at the trial court took cognizance
of the two reasons of "error" and "indictment" advanced but no address was
made in respect of reason of indictment.
5.
That the plaintiffs suit No
FHC/ABJ/CS/74/2007 was not heard on merit but dismissed in limine for
reasons devoid of any findings on the indictment of the Plaintiff/Appellant.
6.
That the evidence sought to
be led is irrelevant to the just determination of this appeal
7.
That all the facts relevant to the evidence sought to be led were in
existence at the lower court and none was pleaded by the 1st
respondent in its statement of defence dated 28th February, 2007
and contained on pages 142 - 145 of the record.
8.
The proceedings in the suit
referred to in paragraph 9 (supra) lasted between 2nd
March, 2000 9th
March, 2007 and contained on
pages 167 - 178 of the
record and no allusion was made to it by the 1st Respondent or
any of the defendants during addresses at the lower court.
9.
That I know as a fact that
the evidence sought to be led will have no effect on the instant appeal in
any way."
In the case of Owata v Anyigor (supra)
particularly at page 16, this court stated that all the condition listed
above must be satisfied together and at the same time before an appeal court
can admit further or fresh evidence on appeal. I observe that the only
reason relied upon by the court below to admit that fresh evidence was
because the document sought to be admitted came into existence on 30/3/07
when judgment had already been delivered on 15/03/07. Then, what happened to
the other conditions? This makes it difficult for me to agree with the
argument advanced by J. B. Daudu, SAN who argued on same point, that it is
automatic to admit such documents as further or additional evidence so long
as it is pleaded and or is relevant to the fact in issue. Further, it must
be taken that the 1st respondent/applicant abandoned his case on
indictment at the trial court as he failed to support what he pleaded with
oral evidence. It is trite that any pleadings with no
evidence to support it goes to no issue. See:
Odunsi v
Bamgbala(1995) 1 NWLR (pt 374)641.
Again, looking critically at what was sought to furnish evidence on the
alleged "indictment" one would come to the inevitable conclusion that the
document, on its face value, was bereft of any credibility. That document
lacked all the characteristics of what constitutes proper indictment in law.
The whole saga was thus no more than allegation. It was therefore wrong of
the court below to admit the document i.e. judgment of Kuewumi, J. in suit No
FHC/ABJ/CS/74/2007 as fresh/further evidence on appeal. Accordingly, I allow
issue No 1.
On the appellant's second issue which is on whether the court below ought to
have followed the decision of this court in
Ugwu v Ararume in
appeal No SC/63/07. For a better appreciation of this
issue, I think it is important that I should reproduce the major events of
the proceedings of the 4th of April, 2007 conducted by the court
below, it reads as follows:
"Mr. Fagbemi ~ informs the court he was briefed only yesterday. He realizes
the position in the appeal. He should be allowed till tomorrow to file his
brief. It is wise to wait for the Supreme Court in respect of section
34(1) of the Electoral Act so that the Supreme court
decision can become the precedent on the matter.
Mr. Daudu, SAN submits that in view of the seriousness of the matter briefs
must be filed. The case of Ararume is now at appeal in Supreme Court, the
court can depart from its earlier decision but to do that the court shall
decide that on a panel of five. Application shall be taken by a panel of
five being a constitutional decision. Time is of essence so that the
decision of the court shall be taken expeditiously.
Chief Gadzama, SAN submits that the position of section 34 is known.
The court should allow parties to file briefs in view of the fact that two
senior counsels are coming in for the first time. Ararume shall be heard
tomorrow and the judgment shall be delivered on Tuesday. This court shall
wait for the judgment of Supreme Court applies that parties shall file
briefs. The Supreme Court sat as a panel of seven on Ararume it appears we
have a constitutional matter and a panel of five should have sat section
145(1) (d) can be invoked at the tribunal on this matter. There is need
to adjourned this matter to allow five justices to sit and to order filing
of briefs.
Mr. Fagbemi
- submits the court to read
between the lines. The antecedent is to frustrate this case.
This case was adjourned on two
occasions. There was emphasis on oral submission in respect of this appeal.
There have been procedural delays in the hearing of this appeal. Election is
only about ten days away. Vide section 247(1) of the constitution
refers by counsel.
The position of the constitutional panel is provided for by the Supreme
Court and as provided for under the constitution. The appeal should have
been heard today and there is a cross-appeal which is separate and distinct
Re. Fagbemi informs the court that he asked for a panel of seven so that
there
can be a departure from the
decision in Ohuoha
v Okafor.
Justice should be
seen to be done in this
case and it can only be
done by the hearing of this appeal now before election. This is not an
election matters but a pre-election matter. The case of Amaechi
cannot go on until it has been determined. Time is of essence. There is an
undertaking that if the Supreme Court upturns the judgment of this court
then the appellant shall abide by it. Parties were served with papers on
Friday. Court to take a serious view of this situation
go on.
Court: it is the decision of this court and going by the doctrine of stare
decisis -judicial precedent that not (sic) wait for the judgment of the
Supreme Court on section 34 of the Electoral Act - since that
decision shall be law and applicability shall be binding on the parties
particularly political parties INEC. This court shall also base other
decision on any appeal involving section 34 on the decision of the Supreme
Court, this appeal shall be adjourned to the 11th of April 2007."
The last paragraph from the above excerpts is the ruling/decision of the
court below on the application that that court should await the
pronouncement of this court in Ugwu v
Ararume (supra). That ruling remained valid and subsisting up to the
time this court gave its decision in
Ugwu v Ararume and up to the very moment the court below took a decision
either way. The position of the law is that once the Court of Appeal made a
decision or a statement of its guiding principles, it is bound by it and
must follow it. See: Oyeyemi v
Irewole Local Government (1993) 1 NWLR (Pt.270) 462 at 477. Learned
Senior counsel for both the 1st and
the 2nd respondents respectively, submitted that the appellant
was wrong in arguing that the Court of Appeal was bound by its statement
quoted at pages 372 - 373 of the record. Both submitted further that so many
issues arose between 14/04/07 and 20/7/07, being features that distinguished
the Ararume's case from the present appeal. Learned senior counsel for the 1st
respondent cited the following instances:
(i)
the issue of additional evidence admitted
(ii)
election had taken place on 14/4/07 and 2nd
respondent declared elected and returned,
(iii)
issue of immunity of the 2nd
respondent under section 308 was raised. Learned senior counsel for the 2nd
respondent submitted that the court of Appeal never refused to follow the
Supreme Court in the Ararume's case and on the contrary it obediently
applied Ararume's case to the distinct facts of this case. He submitted that
the result reached by the Court below was the correct one in the process. He
argued that at no point was there an undertaking by all counsel to apply
Ararume's case without further reflection. It was only the appellant's
counsel that promised to be bound by Ararume if the appeal succeeded.
At the risk of repetition, I need to reproduce what the court below said on
4/4/07- It reads as follows:
"Court: it is the decision of this court and going by the doctrine of
stare decisis
– judicial precedent that not
(sic) wait for the judgment of the Supreme Court on section 34 of the
Electoral Act - since that decision shall be law and applicability (sic)
shall be binding, on the parties particularly political parties INEC. This
court shall also base other decision on any_ appeal involving section 34
on the decision of the Supreme Court. "
I think there is no ambiguity in the above decision. It is very clear, at
least to me, that the court below intended to wait for and be bound by
whatever decision this court might come up with. Thus, this court's
decision, whether sweet or bitter, has to be swallowed, hook - line and
sinker, by the court below. To now say that there were some distinguishing
features in this appeal as against Ararume's, I think, is to embark on a
needless and aimless jamboree. It is a distinction without difference. None
of the features mentioned by the 1st and 2nd
respondents can, in my view, be sustained in law to effect a change on the
actual case of the appellant. The main bone of contention in Ararume's case
and this appeal is the interpretation of
section 34 of the Electoral Act, 2006.
By the doctrine of Stare decisis,
and by the provisions of the Constitution, the court below and any other
court in Nigeria, and all persons and authorities must follow and enforce
the interpretation given by this court in Ararume's case.
See section 287
(1) of the Constitution of the Federal Republic of Nigeria, 1999.
It is not a matter of choice or preference. I hereby allow appellant's issue
No 2.
Appellant's issues 3, 4 and 5 were argued together by the learned SAN for
the appellant. I will treat them in the same manner as well.
Section 34 of the Electoral Act, 2006,
provides as follows:
"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 of 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."
It is quite clear from the above that substitution of candidates by a
political party is allowed by the law but within the time framework given by
the law and that is that it must be done within a period not later than 60
days to the election. Not only that the written application for the
substitution must give cogent and verifiable reasons.
Yes! cogent and verifiable reasons. Let me repeat
here what I said in the case of Ugwu
v Ararume (supra):
"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 sidelined 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 should 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, taking the totality of the
legislation under review, assigns 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
clear, forcible presentation of facts, idea 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 dear 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."
Inspite of the fact that the appellant crossed the hurdle by overwhelmingly
scoring the highest votes at the primaries with 6,527 votes which ranked him
to be first among other contestants, yet his party (PDP) for no apparent,
cogent, justifiable and verifiable reasons decided at the end of the
primaries to submit to INEC the name of the 2nd respondent in
substitution thereof. The only reason for the substitution, like in the case
of Ugwu v Ararume (supra) was
because of "error" in sending the appellant's name to the 3rd
respondent. This is what Exhibit ‘A’ says. Let me for the
avoidance of doubt quote Exhibit "A" and it reads as follows:
"Peoples Democratic Party
Power to the people
Motto: Justice, Unity and Progress
National Secretariat: Plot 1970, Wadata Plaza,
Micheai Okpara Street, Wuse, Zone 5, Abuja.
Tel: 09-5232569, 5233429, Fax: 09-5231299
February, 2, 2007
Prof. Maurice Iwu
Chairman, INEC
Abuja.
Re: Forwarding of PDP
governorship candidate and deputy-Rivers State
This is to confirm that Barrister Celestine Ngozichim
Omehia and
Engineer Tele Ikuru are PDP governorship and deputy governorship
candidates for Rivers State. Barrister Celestine Ngozichim Omehia
substitutes Hon. Rotimi Amechi whose name was submitted in error. This is
for your necessary action,
That letter (Exh. 'A') was signed and counter
signed by Sen. (Dr.) Arnadu Ali, GCON, National Chairman of PDP and Ojo
Maduekwe, CFR, National Secretary PDF, respectively.
In her judgment, the learned trial judge found and concluded that the letter
(as reproduced above) written by PdP to INEC on 2nd February,
2007 at a time when appellant's suit was subjudice was improper and the
letter was set aside. Again, the learned trial judge held that the reason
given by PDP for the substitution satisfied the requirements of the
Electoral Act, 2006.
This was the reason that took the appellant on appeal to the court below.
The 2nd and 3rd respondents
cross-appealed as well. It was during the pendency of the appeal and
the cross-appeals at the court below that some occurances which include the
incidences which gave rise to the legal tussle in Ugwu v Ararume's case
(supra) took place. The trial Federal High Court in Ugwu v Ararume's case
dismissed Ararume's suit. He appealed to the same court below. That appeal
and the one on hand happened to be before the court below at the same time.
In its judgment in Ararume's case, the court below held that the reason
"error" did not satisfy the requirement of the
Electoral Act, 2006. The
respondent therein appealed to this Court. This court affirmed the decision
of the court below in Ugwu v Ararume's case.
As a result of our decision in Ararume's case the appellant's party PDP,
expelled him from the party. It also expelled the appellant in this appeal.
On 11th April, 2007, the court below struck out the appellant's
appeal on the reason that it lacked jurisdiction as a result of the
expulsion of the appellant by the 1st respondent. This court, on
11th May, 2007 heard the appeal and held that the court below had
jurisdiction and that the appellant's appeal and the cross-appeals be heard
expeditiously
Several legal tussles in between took place in the court below. These have
well been set out in the leading judgment of my brother, Oguntade, J.S.C
which I need not to reproduce. At the end, the court below departed from its
earlier decision in Ugwu v Ararume
on some points which the court below considered to make this appeal distinct
from that of Ugwu v Ararume.
I find it difficult to agree with the court below that there exist some
distinguishing features between this appeal and that of Ararume.
i find it difficult to depart from my earlier
decision in Ugwy_y. Ararume (supra). 1 therefore hold that the appellant's
name in this appeal was wrongly substituted by the 3rd respondent
in favour of the 2nti respondent- In my view, it was the
appellant who qualified as the rightful candidate presented by the 3rd
respondent for the Rivers State Gubernatorial Election. I resolve this issue
in favour of the appellant.
Issues Nos 4 and 5 are clearly on the issue of indictment of the
appellant. I already held earlier that the issue of indictment remained an
allegation and the document adopted by the court below lacked evidential
value. I consider any further discussion on the issue to be a moot trial
into which I am not ready to enter.
On issue 6, I completely agree with my learned brother Oguntade in his
reasoning that the suit now on appeal was taken to the trial court as an
intra party dispute and the question concerning which party or candidate
would win the governorship election in River State was irrelevant and not an
issue. I emphasize that what came before us is a civil appeal
simplicita and cannot transform
itself into an election petition. Accordingly, I also hold that this court
has no jurisdiction to nullify the election conducted by the 3rd
respondent on April 14th 2007, as this appeal was not rooted to
this court through any Election Tribunal, but through a Federal High Court
and Court of Appeal in exercise of their jurisdiction on civil matters. This
is what conferred jurisdiction on this court as the settled law is that it
is the claim before the trial court that determines the appellate court's
jurisdiction- See: Gombe v
P. W. (Nig.) Ltd. (1995) 6 NWLR (Pt.402) 402;
Ege Stuppinq & Trading Ind. v Tigris
Int. Corp. (1999) 14 NWLR (Pt.637) 70. These are my reasons for allowing
the main appeal.
With regards to all the cross - appeals, I am
contented with my learned brother Oguntade J.S.C's reasoning which I adopt
as mine. I do not intend to add anything.
Reasons for Judgement
Given by
Pius Olayiwola Aderemi.
J.S.C.
On Thursday, 25th
of October 2007, 1 delivered my judgment in the open court in this matter
sequel to taking the addresses of the respective counsel representing the
parties in this appeal and I did say that I would give my reasons for the
said judgment today. I now proceed to give my reasons.
The appeal before us is
against the judgment of the Court of Appeal, (Abuja Division) delivered on
the 20th day of July 2007 dismissing the appeal of the appellant
lodged against the judgment of the Federal High Court sitting in Abuja,
delivered on the 15th of 2 March 2007 in Suit No.
FHC/ABJ/CS/20/2007: Chibuike Rotimi
Amaechi v Independent National Electoral Commission (INEC) & 2 Ors. In
the action which was commenced by a writ of summons, the appellant, as
plaintiff in the trial court was challenging the 1st respondent,
as at that stage, the only defendant in the trial court for changing or
substituting his candidature for the April 2007 gubernatorial election.
Sequel to filing his writ of summons and the statement of claim the
plaintiff/appellant brought an application to join the 2nd and 3rd
respondents as the 2nd and 3rd defendants in the
trial court, and upon the grant of the application for joinder, the
plaintiff/appellant accordingly amended his statement of claim lo reflect
the joinder. Suffice it to say that the amended writ of summons and the
amended statement of claim were thereafter served on defendants/respondents.
Perhaps, I should here add that each of the defendants filed separately a
statement of defence with the plaintiff filing a reply to the statement of
defence of the 2nd defendant. The plaintiff/appellant claimed
against the defendants 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
political party and/or the Independent National Electoral Commission (INEC)
under the Electoral Act, 2006 and if 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 (1) 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 part}' 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 a 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 the name of the plaintiff as the candidate of the
Peoples Democratic Party (PDP) for the April 13 2007 Governorship Election
in Rivers 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 P.D.P. for Rivers State in the
forthcoming governorship election in Rivers State after the plaintiff has
been duly nominated by the Peoples Democratic Party as its candidate has
accepted the nomination and 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 defendant from
changing or substituting the name of the applicant as the Rivers State
Peoples Democratic Party Governorship candidate for the April 2007, Rivers
State Governorship Election unless or until a court order is made
disqualifying the plaintiff and/or with cogent and verifiable reasons are
given as required under Section 34 (2) of the Electoral Act."
After exchange of their
pleadings, the parties, with the leave of the trial judge, formulated issues
for determination in the case and thereafter addressed the trial judge on
those issues. In a reserved judgment delivered on the 15th of
March, 2007, the learned trial judge in dismissing the
suit, ruled that the substitution of the 2nd
respondent/defendant for the appellant/plaintiff as a candidate for the
April 14, 2007 gubernatorial election was in accordance with the provisions
of Section 34 (1) and (2) of the Electoral Act, 2006.
Dissatisfied with the said
decision, the plaintiff/appellant appealed to the court below. In view of
the urgency of the suit having regard to the fact that the elections were
fast approaching, the process of appeal was abridged. When the appeal first
came up for hearing before the court below, the respondents raised a
preliminary objection to the hearing of the appeal contending that the
appeal was no longer competent on the ground that the party (Peoples
Democratic Party - P.D.P.) that initially sponsored the appellant
for' the gubernatorial election had expelled him from the party. After
taking arguments on the preliminary objection, the court below upheld the
objection and declined to entertain the appeal relying on the provisions of
Section 177 (c) of the 1999 Constitution that the appellant had to be
sponsored by a political party to contest the election. An appeal by the
appellant on this point succeeded before this court, and this court (the
Supreme Court) held that the lower court was wrong in law, to have declined
jurisdiction in the appeal and ordered the lower court to hear the appeal on
its merit.
Before the parties were heard
on their briefs, the 1st respondent brought a motion praying for
an order granting leave to it to adduce further evidence in this appeal by
tendering the certified true copy of judgment in
Suit No. FHC/ABJ/CS/29/2007: Chibuike
Rotimi Amaechi v. A-G Fed, Economic and Financial Crimes Commission, INEC,
P.D.P. and Celestine Omehia which was delivered on 30/3/07 by Kuewumi J.
at the Federal High Court, Abuja. After taking the
arguments of counsel for and against the admission into evidence of the said
document, the court below in its ruling, admitted the said document as part
of the evidence before the court. In another application filed on
12/6/07, the 2nd respondent/cross-appellant/applicant prayed the
court below to strike out the appeal or alternatively stay further
proceedings thereon on the ground that the 2nd respondent having
acquired immunity under Section 308 of the 1999 Constitution as the recently
sworn in Governor of Rivers State, further proceedings in this appeal must
abate until he looses the said immunity- Again, arguments of counsel were
taken by the court below. In its ruling dismissing the application, the
court below said inter alia: -
"On that score I hold that in an election related matter where the status of
the 2nd respondent as Governor is being challenged, the immunity
conferred on him by the Constitution is equally in question. The2nd
respondent/cross-appellant does not enjoy any immunity from being sued in
this suit ....... This application therefore
lacks merit, it is hereby struck out."
The court below eventually
heard the appeal on its merit on the 16th of July 2007. After
taking the arguments of the various counsel appearing in the matter, in a
reserved judgment delivered on the 20th of July 2007 covering all
the issues raised before it, the court in the leading judgment made copious
findings inter alia: -
"This case is distinguishable
from Ararume's case. That Section
34 (2) must be interpreted in a way to sustain the candidature after the
political party sponsoring the candidate has informed INEC of the change of
that candidate as its candidate. If the candidature of a withdrawn candidate
is sustained because no cogent and verifiable reason had been given the
court would be sustaining the candidature of a person who is no longer being
sponsored by a political party as the court has no power to impose a
candidate on a political party. The court should take cognizance of the
position of the law especially the interplay between Section 34 of the
Electoral Act and Section 177 of the Constitution. The facts of the
indictment of the Appellant as pleaded in paragraph 7 of the 1st
Respondent's statement of defence is enough to satisfy the requirement of
cogent and verifiable reason as stipulated in Section 34 (1) and (2) of the
Electoral Act, 2006. The substitution of the appellant on Exhibit D is
justified in the prevailing circumstance of the case
.......... I have carefully considered the submission of the learned
senior counsel for the parties. I have no doubt in my mind that the main
grouse of the appellant which is the bone of contention in this appeal is
the interpretation of Section 34 (1) and (2) as it is applicable to the
substitution of the appellant in this case with the 2nd
respondent/cross-appellant based on Ex. D a letter dated 2ntl of
February 2007 acted upon by the 1st respondent/cross-appellant.''
While adopting the
interpretation of the provisions of Section 34 (1) and (2) of the Electoral
Act, 2006 as given by this court in the
Ararume's case, the court below
went ahead to hold that the interaction between Section 34 (1) and (2) and
Section 177 (1) (c) of the 1999 Constitution on the issue of membership and
sponsorship by the political party is very strong. And on the issue of the
indictment of the appellant by the EFCC, the court below held: -
“It is not disputed and hence
of common ground that the issue of indictment of the appellant came up
before the lower court and parties joined issues on same. What then
is the essence of this indictment to this case
and the role of INEC on the fact of the indictment of the appellant in the
interpretation of Section 34 (1) and (2) of the Electoral Act? From where
should the reason of indictment emanate, is it from INEC or the party PDP?
Has INEC the power to embark on a voyage of discovery to
bring in the matter of the indictment of the appellant as a missing link.
One peculiar circumstance of this case and where it differs from
Ararume’s case (supra) is that
the 2nd respondent did not go through any party primaries. In effect, he was
selected by the party ....... The published list
of the appellant's indictment supplied the link which made the reason
verifiable. At that period of our electoral history it would have been
contra public policy for INEC or the 3rd respondent who sponsored
and nominated the appellant to shy away from the list and dump same in the
archives of political documents. The error which necessitated the
substitution was verified from the surrounding circumstance of the
information then already at the disposal of INEC. This case I must explain
is different from Ararume’s
case ........... It is not the intention of law
makers to force a candidate on the party. The selection must always be
interpreted to reflect that aspect. It is the order of this court that the
appellant was properly substituted in accordance with the provisions of
Section 34 (1) and (2) of the Electoral Act. The appeal lacks merit and it
is accordingly dismissed. Judgment of the lower court is affirmed.”
On the cross-appeal which was
on whether the learned trial judge properly considered the issue of
indictment of the plaintiff/appellant by the EFCC, the court below held
inter alia: -
"It is also my conclusion
in the judgment that the issue
of nomination and sponsorship
of candidates by the 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 party. A
court of law lacks the jurisdiction to adjudicate on intra-party
contest or nomination of
candidate …….
On the procedure before the trial court, which is
for this court to decide whether to set aside and enter an order for retrial
of this issue, this issue strikes me as odd as the court adopted the
procedure with the consent of the parties. The 2nd
cross-appellant had adequate opportunity to protest and decline being part
of the procedure.
The 2nd
cross-appellant is now estopped
from making a request that the procedure be set aside after fully
participating in it. The request is very much belated. …….
In the final analysis, the main appeal lacks merit and is dismissed,
the judgment of the lower court is affirmed, while the cross-appeal succeeds
in part."
With the leave of court below,
the appellant appealed against the judgment to this court by a Notice of
Appeal deemed properly filed on the 25th of October 2007.
The 3rd respondent also cross-appealed
against part of the decision of the court below.
The appellant distilled six
issues from the grounds of appeal contained in his Notice of Appeal and as
set out in this brief of argument, they are as follows: -
"(1)
Whether the Court of Appeal was not in
error in allowing fresh evidence on appeal, when no exceptional circumstance
was shown to warrant such admission.
(2)
Whether having regard to the undertaking before the Court, the court
below might not to have followed the decision of the Supreme Court in
Ugwu v. Ararume (supra)?
(3)
Whether there exists cogent and verifiable
reasons to warrant the substitution of plaintiffs name with that of any
other person in breach of Section 34 of the Electoral Act, 2006 and if not,
whether the purported substitution of plaintiffs name is null and void?
(4)
Whether INEC (Ist respondent)
can rely on extraneous fact or any fact not presented by a political party
seeking substitution to verify reason given for seeking substitution?
(5)
Whether there was in existence any indictment of the plaintiff for
same to be used as a basis to verify the reason of error given by the 3rd
respondent for seeking substitution of plaintiffs name; and
(6)
Whether having regard to the concept of
Lispendens and the fact that, at
the material time of the election, plaintiff, being the only lawful
candidate of the Peoples Democratic Party, he ought not to be declared the
winner of 14th April, 2.007 general election
in Rivers State."
The 1st respondent
also identified four Issues for determination and as contained in its brief
of argument, they are as follows: -
"(1)
Was the Court of Appeal
bounded by itself and bound to apply the decision in
Ugwu v. Ararume
(2007) 12 NWLR (pt.1048) 367 in
the event of subsequent distinguishable features and circumstances?
(2)
Whether the Court of Appeal was right in refusing to declare the
appellant as the winner of the Rivers State Governorship Election of
14/4/07.
(3)
Whether the Court of Appeal was right in allowing the application of
the 1st respondent for further evidence on appeal, admitting copy
of ruling in FHC/ABJ/CS/74/Z007 and was it held to operate as indictment of
appellant.
(4)
Was the Court of Appeal right in holding that this case is
distinguishable from the case of Ugwu
v. Ararume (supra), in coming to the conclusion that the appellant was
properly substituted in accordance with the provisions of Section 34 (1) and
(2) of the Electoral Act, 2006."
The issues identified for
determination by this court by the 2nd respondent as set out in
his brief of argument are as follows: -
"(1)
Whether the appeal is still a live issue
when there is pending before an Election Tribunal, a petition filed by the
appellant at the Rivers State Governorship Election Tribunal challenging the
election of the 2nd respondent as the Governor of Rivers State?
(2)
Whether Supreme Court has jurisdiction to entertain this application
and in the long run, the appeal?
(3)
Whether this is a proper instance to grant the appellant leave to
appeal to the Supreme Court of Nigeria."
The 2nd respondent
who also cross-appealed as the 1st cross appellant, for his part,
identified six issues for determination; and as set out In his brief of
argument, they are as follows: -
"(1)
Whether additional evidence of indictment
admitted by the Court of Appeal is proper in the circumstances and relevant
to a determination of the propriety of the process of substitution
challenged herein by the appellant?
(2)
Having regard to the peculiar facts and circumstances of this appeal,
whether the Court of Appeal was right in her findings that the provisions of
Section 34 of the Electoral Act have been complied with in this instance and
that there was proper substitution of the appellant as Governorship
candidate of the 3rd respondent with the 2nd
respondent?
(3)
Granted that this Honourable Court has affirmed the justiciability of
Section 34 of the Electoral Act in
Ugwu v Ararume (supra), which the court below has followed in this
instant appeal, assuming but not conceding that there have been a breach of
Section 3 of the Electoral Act, are these limits to the remedies (if any)
available to the plaintiff/appellant?
(4)
Whether the entire appeal is not academic or overtaken by events as a
result of a combination of events, to wit, the unchallenged dismissal of the
appellant from the fold of the P.D.P., the fact that the elections in issue
have been held in which several other political parties participated, the
declaration of the 2nd respondent as winner of the said
Governorship election and his being sworn in, the existence of appellant's
election petition and other
petitions in the Rivers State Governorship Election Tribunal?
(5)
What is the
real scope
and extent of Section
34 of the Electoral Act in the
light of the peculiarities of this
instant case?
(6)
Whether the appellant's exercise of his access to court in the
challenge of alleged breaches of perceived rights in any way derogates from
the constitutional power given to 1st respondent to conduct
elections under the 1999 Constitution and the Electoral Act and if so,
whether the Supreme Court can at this point in time venture into a
declaration of who is the winner of the Governorship election in Rives
State?"
The 3rd respondent
in his brief of argument raised up four issues
for determination, and they are: -
"(1)
Whether the lower court was right in
granting the 1st respondent's application to adduce fresh
evidence on appeal.
(2)
Whether or not the lower court was right in holding that the
substitution of the name of the appellant for the 2 respondent was
valid having regard to the indictment of the appellant.
(3)
Whether the lower court was right in holding that the fact of
indictment of the appellant is a fact which the court can take judicial
notice of and as such the 1st respondent cannot turn a blind eye
to this fact.
(4)
Whether or not this Honourable Court can grant the prayer of the
appellant for a declaration that he is the duly elected Governor of Rivers
State having regard to his claim before the trial court."
The 2nd
cross-appellant who is also the 3rd respondent in this appeal
identified only one issue for the determination of its cross-appeal; it is
in the following terms: -
"Whether the court below was
right, in law, to hold that the appeal before it was an election-related
matter and having so held, went further to hold that the second respondent
was not entitled to enjoy the benefits of the immunity conferred on him by
virtue of Section 308 of the Constitution of the Federal Republic of
Nigeria, 1999 having taken the oath of office and the oath of allegiance as
the Governor of Rivers State and placing reliance on the cases of
AD v Fayose (2004) 8 NWLR (pt.876)
639 and Obi v Mbakwe (1984) 1 SCNLR 192."
The appellant who is the
cross-respondent to the two cross-appeals in his response to their
(cross-appeals of the 2nd and 3rd respondents) briefs
raised three issues for the determination of the two cross-appeals and
contained in his brief, they are as follows: -
"(1)
Whether plaintiffs suit being an election related matter and one
challenging the process by which 2nd
respondent was made to substitute the appellant, which case was filed
before election, can be defeated by reason of the cross-appellant becoming
the Governor of a State.
(2)
Whether plaintiff/appellant/cross-respondent's brief in this suit is
justiciable.
(3)
Whether the procedure adopted in determining the plaintiffs claim can
vitiate the plaintiffs action."
When this appeal came before
us on the 25th of October 2007, Mr. Fagbemi, learned Senior
Counsel appearing for the appellant, while referring to, adopting and
relying on the briefs filed on behalf of his client submitted that the
present case is similar to Ararume's
case in all material respects. As the present appeal calls for the
interpretation of the provisions of Section 34 of the Electoral Act so did
the Ararumes’ case already
decided by this court; he submitted while urging us to adopt the
interpretation of the aforesaid provision of the Electoral Act as given by
this court in the Ararume case,
he added that going by the facts of the case at hand, the facts of this case
(present appeal) are stronger than those of
Ararume's case. He cited the case
of Action Congress v. INEC_2007) 12
NWLR (pt.1048) 222 and submitted that the indictment foisted on the
appellant which formed the basis of his substitution was a ruse and could
not advance the case of the respondents. As to what order this court should
eventually make, learned Senior Counsel submitted that it was the party that
the electorate voted for and that as at the time the election was being
conducted, the lawful candidate of the Peoples Democratic Party was the
appellant and this - court should so declare and consequently, the appellant
should be declared by this court as the candidate that won the election on
the platform of the P.D.P. He finally urged that the appeal be allowed.
For his part, Chief Nwaiwu,
learned Senior Counsel for the 1st respondent/cross-respondent
referred to, adopted and relied on the 1st respondent's brief
filed on the 15th of October 2007 and the 1st
respondent-cross-respondent” s brief filed on 18th
October 2007 and the Notice of Preliminary Objection filed on 15th
October 2007 which contends that the issues identified for
determination have no relationship with the grounds of appeal, reliefs not
claimed should not be granted.
On Section 308 of the 1999
Constitution, the learned senior counsel submitted that the reliefs sought
were pre-election matter, election having now taken place and the 2nd
respondent-cross-appellant having been sworn in as the Governor of Rivers
State - the provisions of Section 308 of the Constitution of 1999 would
avail him - immunity from court action - the court, he finally urged, should
dismiss the appeal and allow the two cross-appeals. Mr. Daudu, learned
Senior Counsel for the 2nd respondent and 1st
cross-appellant referred to, adopted and relied on the 2nd
respondent's brief of argument filed on 15th October 2007, the 1st
cross-appellant's brief of argument which embodied 2nd
respondent/1st
cross-appellant's reply brief and the Notice of Preliminary Objection filed
on 24th October 2007 submitting that all the live Issues in this
appeal had migrated to the Election Tribunal, secondly, the appellant no
longer being a member of the P.D.P. cannot maintain the action and thirdly,
that the appellant had already filed an election petition.
It was the learned Senior
counsel's further submission that the principles of
Lis Pendens do not apply to the
instant case., as, according to him, the principles only apply to property
and not to rights; he placed reliance on the decisions in
Alakija & Ors v. Abdullahi (1998) 6
NWLR (pt.552) 1 and Nnoji v. Thanks Inv Ltd (2005) 11 NWLR (pt.935) 29.
He again urged that the Notice of
Preliminary Objection be upheld. To him, it is the whole of Section 34 of
the Electoral Act that calls for interpretation and not Section 34 (2) of
the Act as contended by Mr. Fagbemi, senior counsel. While adopting the
interpretation of the provisions of Section 34 of the Electoral Act as given
by this court in the Ararume's
case, it was his final submission, that the section is justiciable, while he
urged that the appeal be dismissed.
On the cross-appeal of the 2nd
respondent, it was the submission of the learned senior counsel, that since
the proceedings in this matter are election-related, the invocation of
constitutional matters is excluded after the person has been sworn in as the
Governor; he finally urged us to allow the cross-appeal. Mr. Gadzama,
learned senior advocate, referred to, adopted and relied on the 3rd
respondent's brief of argument filed on 15th October 2007 and the
3rd respondent/2nd cross-appellant's brief filed on 15th
October 2007 and opined that the main issue that calls for resolution here
is, whether the appellant was validly nominated and unlawfully excluded from
the election in accordance with the provisions of Section 145 (1) (d) of the
Electoral Act and while further submitting that the facts of the
Ararume's case are quite
different from the facts of the present case, he urged that this appeal be
dismissed. On the cross-appeal
of his client, he further submitted that the only course open to the
appellant is to seek a redress at the Election Tribunal as enjoined by the
provisions of Section 285 (2) of the 1999 Constitution. This court, it was
further submitted, has no jurisdiction to entertain this matter for the
reason that the appellant not having taken part in the election, he could
not be declared the winner of the election - the party notwithstanding.
He finally urged that the
cross-appeal be allowed. On points of law only, Mr. Fagbemi, learned senior
counsel for the appellant, submitted that the whole of the provisions of
Section 34 of the Electoral Act were construed in the
Ararume's case while still urging
that the appeal be allowed and the cross-appeal be dismissed.
I have had a careful reading
of all the issues raised for determination by the parties in their
respective briefs of argument as they relate to the appeal and
cross-appeals. To me, the cardinal issue that calls for determination in
this appeal is whether, the name of the second respondent/1st
cross-appellant was, in compliance with the provisions of all the laws
relating to this matter, substituted for that of the appellant as the
Gubernatorial candidate for Rivers State at the April 2007 election under
the platform of the Peoples Democratic Party (P.D.P.). That is the
substratum of the entire case. If, after examining all the relevant
provisions of the law, the 3rd respondent/2nd cross-appellant
could be said to be on a firma terra in substituting the name of the 2nd
respondent/1st cross-appellant (Celestine Omehia) for that
of the appellant (Chibuike Rotimi Amaechi) as its Governorship candidate for
the said elections of April 2007, this appeal will not have any merit and it
would have to be dismissed.
Going through their pleadings,
it is not in dispute among the parties that the appellant, who was the
plaintiff before the trial court, was the gubernatorial candidate for the
Peoples Democratic Party (P.D.P.) in the Rivers State for the April 2007
Polls and the party (P.D.P.) had accordingly submitted his name to the 1st
respondent (INEC, the 1st defendant at the trial court). Exhibit
B, a letter dated 14th December 2006 was the means by which the
party (PD.P.) - 3rd respondent/2nd cross-appellant
sent it to the 1st respondent. Suffice it to say that Exhibit B
contains all the names of P.D.P.'s gubernatorial candidates -the appellant
was number 6 on Exhibit B. The 1st respondent acknowledged the
receipt of Exhibit B by its Note of Acknowledgment dated 15th of
December 2006. Perhaps I should also say that it admits of no dispute
between the parties that the appellant went through the mandatory primaries
of his party and he had overwhelming votes consequent upon which his name
was forwarded to the 1st respondent. However, by a letter
dated February 2, 2007, addressed to the
lst respondent by the 3rd respondent, P.D.P,
informed the 1st respondent that it was substituting the name of
the 2nd respondent/Ist cross-appellant (Celestine
Omehia) for that of the appellant (Rotimi
Chibuike Amaechi) as its gubernatorial candidate for the said
election. That letter was attached as an annexure to the amended statement
of claim and 17 later tendered as Exhibit D at the hearing of the case; it
reads: -
"PEOPLES DEMOCRATIC PARTY (P.D.P.)
February 2, 2007
Prof. Maurice
Iwu
Chairman
INEC
Abuja
RE: FORWARDING OF P.D.P. GOVERNORSHIP CANDIDATE AND DEPUTY - RIVERS STATE
This is to confirm that Barrister Celestine Ngozichukwu Omehia and Engineer
Tele Ikuru
are P.D.P. Governorship and Deputy
Governorship Candidates for Rivers State Barrister Celestine
Ngozichukwu Omehia substitutes Hon.
Rotimi Amechi (sic) whose
name was submitted
in error. This is for your
necessary action.
(Underlining supplied by me)
I pause to say that it is the
duty of political parties under the law to submit to the Independent
National Electoral Commission, the names of candidates they may wish to
field or sponsor for an elective office not later than 120 days before the
date fixed for a general election and 14 days before the date fixed for a
bye-election. See Section 32 (1) and Section 32 (7) of the Electoral Act
2006. I should here also reiterate the limit of the powers of INEC as
it relates to candidates for election while some duties are conferred on
INEC per Section 32 (supra) it is obvious from the clear and unambiguous
provisions of the aforesaid section of the Electoral Act 2006, that the
Commission lacks the power to disqualify any candidate on its own. The power
of disqualification of any candidate from contesting an election after his
name has been forwarded to the Commission belongs exclusively to the Federal
High Court or the State High Court. This court (Supreme Court) has
reiterated this principle in a number of its decided cases. Having submitted
the name or names of its candidates to contest in an election, a political
party still reserves the right to withdraw the name or names of such
candidates by applying to the Commission in writing, not later than 60 days
to the election stating cogent and verifiable reasons; Section 34 (2) of the
Electoral Act 2006 provides:-
Sub-Section (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."
Sub-Section (2)
"Any application made pursuant
to sub-section (1) of this section shall give cogent and
verifiable reasons"
(Underlining mine for
emphasis)
Arguments have been advanced
by the appellant in his brief of argument that there has not been due
compliance with the aforesaid provisions by the 3rd
respondent/cross-appellant. Exhibit D the letter by the P.D.P the content of
which I have reproduced above, has not complied with the provisions of the
aforesaid section of the Act, it was further argued. Therefore, it was
finally argued on this point that the 1st respondent (INEC) was
wrong in law, to have acted on the said exhibit and effected the
substitution. On the contrary, the respondents have vigorously argued that
Exhibit D - the said letter from P.D.P. to INEC was in full and valid
compliance with the aforesaid provisions of the Electoral Act. By
sub-section (2) of Section 34 supra, a political party who is minded to
effect a change or substitution to the name of the candidate or candidates
earlier submitted by it to INEC must advance, in writing, cogent and
verifiable reasons for so doing. The catch-words in this sub-section are
"Cogent and "Verifiable" reasons. In Burton's Legal Thesaurus 3rd
Edition by William C. Burton, the word "cogent" is defined thus: -
"appealing
conclusively, appealing forcibly, authoritative, incontestable,
unanswerable, undeniable, undoubtable, unquestionable, weighty, well founded
and well-grounded."
In The New Webster's
Dictionary International Edition, the word "cogent" is accorded this
definition;
"compelling,
convincing"
The word "verify" which is the
verb from the adjective "verifiable" is defined in Black's Law Dictionary 6th
Edition thus:
"To confirm or substantiate by
oath or affidavit; to prove to be true; to confirm or establish the truth or
truthfulness of; to check or test the accuracy or exactness of; to confirm
or establish the authenticity of; to affirm; to support."
Again,
in The
New Webster's
Dictionary Int.
Edition, the word "verify" is defined thus: - "to confirm; to test the truth
or accuracy of; to substantiate by proofs."
The word "and"
standing between the two words "Cogent"
and "Verifiable" in Section 34 (2) supra, is conjunctive and its
ordinary meaning is "in addition". So the reasons to be adduced before the
substitution of candidates can be allowed in law must be cogent in addition
to being verifiable. See Ezekwesili
v. Onwuagbu (1998) 3 NWLR (pt.541) 217 and Adebusuyi v. Oduyoye (2004) 1
NWLR (pt.854) 406, This court in the often quoted decision of it in
Ugwu v. Ararume (2007) 12 NWLR
(pt. 1048) 367 after giving the
definitions of "cogent" and "verifiable" said, providing or adducing cogent
reason and providing materials upon which to confirm the truthfulness of
these reasons must co-exist. Had the court below followed the decision, of
this court in Ararume case
(supra) which it had in the open court given an undertaking to follow apart
from the fact that being a judgment of a superior court, is binding on it,
there again being no material distinguishing factors, it should have had no
difficulty in upholding the appeal of the appellant to it. To hold as the
court below did, that Section 34 (2) supra must be interpreted in a way to
sustain the candidature after the political party sponsoring the candidate
has informed INEC of the change of that candidate as its candidate is to do
incalculable violation to the time-honoured principle of interpretation of
provisions of statutes and the Constitution. The fundamental duty of the
judge is to expound the law and not to expand it. He must decide what the
law is and not what it might be. Where the words used in couching the
provisions are clear and unambiguous as the provisions of Section 34
aforesaid, they must be given their ordinary and grammatical meanings, no
more. Yes, it is true that it is said, that the judex must always have a
resort to the intention of the legislators; that intention can only be found
in the words used to frame the provisions and nowhere else. Thus, merely
providing cogent reason without providing the platform upon, which to
authenticate the truthfulness is not enough. As I have pointed out supra,
giving "Error" as the reason for substituting Barrister Celestine Omehia for
Rotimi Amaechi does not meet the requirements of the provisions of the law.
The principle as to compliance with the requirements of the law is that,
where a statute has made provisions for the steps to be taken, no other
steps than those prescribed, must be followed. See
U.N.T.H.M.B. v. Nnoli.
(1994) 8
NWLR (pt.363) 404; Ejikeme v. Okpara (1998) 9 NWLR (pt.567) 587 and
Kamba v, Bawa (2005) 4 NWLR (pt.914) 43.
Having failed to adhere strictly to the provisions of Section 34 (2)
of the Electoral Act 2006, the 3rd respondent could not in law,
have withdrawn the candidature of the appellant from the 1st
respondent to whom it had earlier voluntarily submitted his
name
and later claimed to substitute that name with that of the 2nd
respondent. Issues Nos. 2, 3 and 4 contained in the brief of the
appellant are consequently resolved in his favour; Issues Nos. 1 and 2 on
the 1st respondent's brief are resolved against it; Issues Nos.
2, 3 and 4 in the brief of the 2nd respondent/1st
cross-appellant are resolved against it; Issue No. l on the 3rd
respondent's brief is resolved against it.
The reason for the
substitution of the name of the 2nd respondent for that of the
appellant to contest the April 2007 election on the platform of the P.D.P.
is the alleged indictment of the latter. The lower court held the view that
the issue of the indictment of the appellant was staring the trial court in
the face, for according to it, it (indictment) was pleaded in paragraph 7 of
the 1st defendant/respondent's statement of defence before that
court; paragraph 7 reads: -
"Further to paragraph 18, the 1st defendant
states
that the indictment of the
plaintiff by the EFCC and the acceptance
of the Report of the Panel
set up by the Federal
Government provide cogent and verifiable
reasons for the plaintiff’s
substitution by his political party."
The plaintiff/appellant in his
reply to the statement of defence of the 1st defendant/respondent
denied that he was indicted by the Economic and Financial Crimes Commission
or any panel. The learned trial judge on the issue of indictment by EFCC
held: -
"Independent National
Electoral Commission has not told us that they were not able to verify the
cogent reason of error given to it by the defendant for wanting to
substitute its candidate. That the plaintiffs name was in the same indicted
list is not before the court and I shall refrain from touching on that
exclusive issue."
Both the appellant on one side
and the respondents on the other side were dissatisfied with the
pronouncement of the trial judge on the issue of indictment and so the
appellant appealed thereon while the 2nd and 3rd
respondents cross-appealed. I hasten to say that the matter of indictment
came into being on 20th February 2007 but the substitution of the
2nd respondent for the appellant on the ground of "error" was by
Exhibit D dated 2nd February 2007- The court below held inter
alia: -
"Veracity of the contents of
the published list captioned Investigated and Indicted is a matter for the
court. The fact remains that at the time of screening of the candidates
nominated after screening, the list is available to bodies interested in the
electoral process. The published list being a public document is a document
at large. The 3rd respondent which forwarded
the letter Exh. D alleging error for substituting
the appellant and INEC the 1st respondent which has a duty and
role to verify the alleged error in the prevailing circumstance.
Is INEC supposed to turn a
blind eye on the published list after the party has requested for the
substitution of the appellant with the list at its disposal and vital
information that the appellant kept a date with EECC -Federal Government
Panel ............ It is however noteworthy that
the appellant was not disqualified by INEC from contesting based on the list
captioned Investigated and Indicted, but it was the party which substituted
his name under the provisions of Section 34 (1) and (2) of the Electoral
Act."
I
have said in this judgment
that the 3rd respondent did not comply with the provisions of
Section 34 (1) and (2) of the Act. In continuation, the court below further
held: -
"The published list of the
appellant's indictment supplied the link which made the reason verifiable."
Curiously enough, the court
below on the issue of indictment further held thus: -
"If the issue of indictment is
the alleged error it is not for the court to furnish the evidence of the
indictment to substantiate the error being the reason for substitution of
the appellant."
The question that I now ask
is, what is "Indictment"?
In The Chambers Dictionary, the New 9th Edition, it is
defined thus: -
"a
formal accusation; the written accusation against someone who is to be tried
by jury."
Indictable Offence has been
judicially defined thus: -
"An indictable offence is an
offence triable on information whether or not under the express provisions
of Section 304 (1) of the Criminal Procedure Ordinance ............"
See
Ejoh v. IG of Police (1963) 1 ALL NLR
250. Let me here say that it is important to bear in mind that the
question as to whether a person is qualified or not qualified to contest an
election can only be resolved by leading evidence at the hearing. From the
definitions of "indictment" that I have set out above; indictment is just a
formal accusation; it cannot be assimilated to a sentence and/or conviction
after a criminal trial for a criminal offence. For the accusation of a
criminal offence to be successfully levied against a person, such an
offence, ordinarily must be established before an
impartial court of law. The cardinal principle here is that once a person is
accused of a crime and once the adjudicating body is anything less than a
judicial body vested with criminal jurisdiction, the person so subjected to
that trial before that body is as good as not having undergone any criminal
trial. No matter how well conducted the trial might be, its verdict is null
and void and can never foist a conviction or sentence, known to law, on the
person. Perhaps I should further say that an administrative body lacks the
jurisdiction and competence to try the issue of crime, for such a body is
not a court much less a criminal court. Only a court vested with criminal
jurisdiction is competent to hear and determine the criminality of the
person accused. See F.C.S.C. v. Laoye
(1990) 2 NWLR. (Pt. 106/652; Garba v.
University of Maiduguri (1986) 1 NWLR (Pt.18) 550
and Unthmb v. Nnoli (1994) 8 NWLR (Pt.363) 376.
The so-called indictment
has not advanced the case of
the respondents any further and by no strained interpretation can it be said
to have supplied any missing link in the quest to comply with the provisions
of Section 34 of the Electoral Act. Issue No. 5 on the appellant's brief is
therefore answered in the negative; Issue No. 2 on the 3rd
respondent's brief is also answered in the negative.
An issue that is common to all
parties is where the question was posed as to whether the court below was
right in granting the application of the 1st respondent (1NEC)
for further evidence on appeal admitting the judgment of the Federal High
Court in Suit No. FHC/ABJ/CS/29/2007;
Rt. Hon. Chibuike Rotimi Amaechi v. A-G Of Federation & 3 Ors delivered
by Kuewumi J. on the 30th March 2007. Judgment of the trial court
had been delivered on 15th March 2007. I have had a deep study of
the judgment of 30th March 2007; it did not say that the
appellant was never indicted. The application to tender the document did not
go without the appellant opposing it vehemently. Yet the court below
overruled the objection and consequently admitted in evidence, on appeal,
the ruling of Federal High Court in Suit No.
FHC/ABJ/CS/74/2007. In admitting the said ruling, the court below had
reasoned thus: -
"On perusal of the pages on
the record it is observed that the issue of indictment of the appellant was
pleaded both by the appellant on page 137 of the record at paragraph one in
the plaintiffs Reply to the Statement of Defence of the 1st
defendant and on page 86 of the record in the defendant's statement of
defence paragraph seven. Even the appellant made heavy weather of the
learned trial judge's refusal to make a finding on the indicted list in her
judgment in the appellant's brief. The objection is overruled -while the
document, the ruling of the lower court in Suit No. FHC/ABJ/CS/74/07
delivered on the 301" of March 2007 is hereby admitted as part of
evidence in this appeal."
The aforementioned paragraph
of the plaintiffs reply to the statement of defence of the 1st
defendant reads: -
"Plaintiff states that he was
not indicted by the Economic and Financial Crimes Commission otherwise known
as "EFCC" in any panel set up by the Federal Government and the Federal
Government of Nigeria never accepted any report in this regard."
In paragraph 7 of the 1st
defendant's statement of defence, it is averred thus: -
"Further to paragraph 18, the
1st defendant states that the indictment of the plaintiff by the
EFCC and the acceptance of the report by the Panel set up by the Federal
Government provides cogent and verifiable reasons
for the plaintiffs substitution by his political party."
For a proper understanding of
the point here being raised, I wish to start by saying that I have earlier
in this judgment held that the purported "Indictment" of the appellant by
whatever body under any guise has no legal efficacy since it is not an act
of a competent criminal court. He was never convicted by a competent court
of law. Then, what is the nature of the ruling in Suit No.
FHC/ABJ/CS/74/2007: RE: Hon. Chibuike
Rotimi Amaechi v. Attorney-General Of The Federation & 3 ORS delivered
by Kuewumi J at Federal High Court, Abuja on the 30th of March
2007? The plaintiff in that
case (Amaechi) had approached the trial court by an originating summons
presenting four questions for the court's determination and also claiming
five reliefs: -
The Questions Posed Are: -
"(1)
Whether or not the plaintiff is entitled to a fair hearing in the
determination of his civil rights and obligations, including any question or
determination by or against any government or authority and particularly
whether the purported indictment and disqualification of the plaintiff as
the governorship candidate of the 4th defendant by the 2nd
and 3rd defendants without affording him a reasonable or any
opportunity to be heard is in breach of the plaintiff's rights to a fair
hearing as enshrined in Section 36 of the 1999 Constitution.
(2)
Whether or not it is lawful for the defendants to purport to indict
the plaintiff and to publish or cause to be published a report that the
plaintiff is not qualified to hold the office of Governor and when the
plaintiff has not been convicted or indicted by any court or tribunal of
competent jurisdiction as envisaged by Section 182 of the 1999 Constitution.
(3)
Whether or not the plaintiff having been duly nominated as the
governorship candidate of the Peoples Democratic Party can be substituted or
disqualified by 3rd and 4th defendants without
compliance with the provisions of the 1999 Constitution.
(4)
Whether or not it is constitutional and within the powers of the 1st
and 2nd defendants to unilaterally set up an ad hoc inquisitorial
panel to inquire into official acts of public officers of the Rivers State
Government or any State Government under a Federal Presidential system of
government as prescribed by the 1999 Constitution.
The five reliefs
consequentially sought by the appellant are:-
"(1)
A Declaration that by virtue of Section 36 of the 1999 Constitution,
the plaintiff is entitled to a fair hearing in the determination of his
civil rights and obligations as to whether or not the plaintiff is guilty of
any offence and as to his candidature in the 2007 governorship election on
the platform of the 4th defendant without according him a fair
hearing as envisaged by Section 36 of the Constitution is unconstitutional,
illegal, null and void and of no effect whatsoever.
(2)
A Declaration that it is ultra vires the powers of the 1st
and 2nd defendants to purport to "investigate and indict" the
plaintiff and to publish or cause to be published an allegation that the
plaintiff being an indicted person was not fit to hold public office or
recommend to the 4th defendant not to sponsor the plaintiff as
its Governorship Candidate for Rivers State in the 2007 general election
when the plaintiff has not been convicted or indicted by any court or
tribunal of competent jurisdiction as envisaged by the 1999 Constitution.
(3)
A Declaration that all the actions taken by the 1st, 3rd
and 4th defendants in reliance on the list published by the 2nd
defendant titled "Investigated and Indicted" in which the plaintiff was
falsely presented as a person who has been found guilty of financial
impropriety, including the setting up of a Panel of Inquiry, the purported
submission and/or adoption of the Panel's Report by the Federal Government
and the purported substitution, of
the plaintiff as the governorship candidate of the 4th
defendant for Rivers State as a result thereof are unconstitutional,
illegal, Null and void and of no effect whatsoever.
(4)
An Order setting aside the report of the Panel of inquiry which
purportedly indicted the plaintiff without hearing the plaintiff or giving
him a reasonable opportunity or any opportunity at all to be heard and also
setting aside the purported acceptance of the recommendation of the said
Panel by the Federal Government vide a Gazette or any other Instrument
whatsoever.
(5)
An Order of Perpetual
Injuction restraining the defendants by themselves or through their agents,
privies, servants or hirelings from purporting to substitute the plaintiff
as the Rivers State Governorship Candidate of the 4th defendant
in the 2007 General Elections or purporting to act upon or do anything
whatsoever prejudicial to the interest of the plaintiff as such candidate
pursuant to or in reliance on the publication of the plaintiffs name as
Investigated and Indicted by the 2nd defendant, or act upon or
give effect to the purported report of the Panel of Inquiry set up by the 1st
defendant based on the said list prepared by the 2nd defendant."
In dismissing the plaintiff’s
summons, Kuewumi J. of the Federal High Court, Abuja, after taking arguments
of counsel, held on the 30th March 2007 inter alia: -
"The court has an inherent duty to ensure its processes are not abused.
Having found that this case constitutes an abuse of court's process, the
appropriate order is that of dismissal. Consequently,
plaintiffs case is accordingly dismissed."
This is the certified true
copy of the ruling in FHC/ABJ/CS/74/2007 which the 1st respondent
sought and obtained the leave of the court below to adduce as additional
evidence. Could it be said that the certified true copy of the ruling in
FHC/ABJ/CS/74/2007 or the material facts relating to indictment in the said
ruling were pleaded in either paragraph 1 of the Statement of Defence of the
1st defendant or paragraph 7 of the 1st
defendant's statement of
defence? 1 do not hesitate in proffering an
answer in the negative having carefully read those paragraphs again. For a
party to tender a document in evidence, there must have been contained in
the pleading, statements of fact relating to that document.
See O.H.M.B.v. B.B. Apugo &
Sons Ltd (1995) 8 NWLR(Pt.416) 750. Let me
say that an appellate court reserves the discretion, under the rules of
court, to grant leave to adduce new evidence or new facts in a matter that
is on appeal to it. That
discretion if, properly exercised, is for the furtherance of justice. The
exercise must however be judicious and it is in this respect that the
appellate court must take into consideration, certain guide-lines before
granting leave to adduce new evidence: the guidelines are: -
"(1)
The
evidence sought to be
adduced must be such as
could not have been,
with reasonable diligence, obtained
for use at the trial,
(2)
The evidence should be such
as if admitted, it would
have an important, not necessarily crucial effect on the whole case;
and
(3)
The evidence must be
such as apparently credible in the
sense that it is
capable of being believed
and it need
not be incontrovertible."
See
Asaboro v. Aruwaji & Anor.
(1974) 1 All NLR (Pt.L) 140.
1 have earlier said in this judgment that the so called "Indictments" said
to have been foisted by EFCC on the appellant has no legal efficacy. And if
the ruling in FHC/ABJ/CS/74/2007 is intended to buttress the issue of
indictment on the appellant, apart from the fact that the document was not
pleaded, it is totally devoid of evidential value. Issue No. 1 on the
appellant's brief of argument is therefore resolved in his favour; Issue
"No. 3 in the 1st respondent's brief is answered in the negative;
I also answer Issue No, 1 on the 2nd respondent/1st
cross-appellant's brief as well as Issue No. 1 in the 3rd
respondent's brief of argument in the negative.
I now proceed to address Issue
No, 6 on the appellant's brief which issue finds expression as to the
correctness or otherwise of substitution of the 2nd respondent
(Celestine Omehia) for the appellant (Rt. Hon. Rotimi Chibuike Amaechi) as
the governorship candidate of the P.D.P. for the April 2007 election in some
of the issues raised in the briefs of the respondents. The question then
posed by the parties to this appeal is, whether the doctrine of
Lis Pendens applies to this case
or not. It is common ground that the 2nd respondent was declared
as the Governor of Rivers State notwithstanding the pendency of law suits
relative to who should lawfully occupy that position. The lawful occupation
of the office of Governor of Rivers State is the subject matter of the
appeal. The right to the subject matter was already in court for
adjudication before the 1st respondent went ahead to conduct the
election of 14th April 2007 and eventually swore-in the 2nd
respondent as the Governor of the State. The doctrine of
Lis Pendens finds expression in
the assertion that it prevents any transfer of any right or the taking of
any steps capable of foisting a state of helplessness and/or hopelessness on
the parties or the court during the pendency in court of an action and even
after. By that doctrine, the law does not allow to litigant parties or give
to them during the currency of the litigation involving the rights in it so
as to prejudice any of the litigating parties. The doctrine negates and
disallows any transfer of rights or interest in any subject-matter that is
being litigated upon during the pendency of litigation in respect of the
said subject-matter. The well-known Maxim is
"Pendente Lite Nihil Innovetur"
meaning: During a Litigation Nothing New Should Be Introduced. See
Dan-Jumbo v. Dan-Jumbo (1999) 11 NWLR
(Pt.627) 445. Going by the facts of this case as set out above, it is my
humble view that the doctrine applies. The declaration of the 2nd
respondent as the Governor of Rivers Stated founded upon an illegal and/or
unlawful election is null and void; that Issue No. 6 is resolved in favour
of the appellant while I resolve similar issue in the briefs of all the
respondents against them.
The 2nd
respondent/cross-appellant had in his brief of argument, submitted that
having been sworn-in as the Governor of Rivers State, he has acquired
constitutional immunity pursuant to Section 308 of the 1999 Constitution,
consequently, the appellant/cross-respondent could not maintain, this action
against him. Section 308 provides: -
“308.
(1)
Notwithstanding anything to the contrary in this Constitution,
but subject to subsection (2) of this section -
(a)
no civil or criminal proceedings shall be
instituted or continued against a person to whom this section applies during
his period of office;
(b)
a person to whom this section applies
shall not be arrested or imprisoned during that period either in pursuance
of the process of any court or otherwise; and
(c)
no
process of any court requiring or compelling the appearance of a person to
whom this section applies, shall be applied for or issued:
Provided that in ascertaining
whether any period of limitation has expired for the purposes of any
proceedings against a person to whom this section applies, no account shall
be taken of his period of office.
(2)
The provisions of
subsection (1) of this section shall not apply to civil proceedings against
a person to whom this section applies in his official capacity or to civil
or criminal proceedings in which such a person is only a nominal party.
(3)
This section applies to a person holding the office of President or
Vice-President, Governor or Deputy Governor; and the reference in this
section to "period of office" is a reference to the period during which the
person holding such office is required to perform the functions of the
office.”
The 2nd
respondent/cross-appellant in his brief, In support of his contention that
Section 308 of the Constitution confers immunity on him having been sworn-in
as the Governor of Rivers State has argued in his quest to dislodge the
holding of the court below that the 2nd respondent did not enjoy
any Immunity under Section 308 of the Constitution, that the issue at stake
in this appeal is not election related because; the seat of Governor is not
at stake by candidature and time for determining that has lapsed. It was his
further submission that any pre-election matter not concluded before the
election is displaced by post election provisions of the Constitution. On
this issue, he finally urged us to hold that the court below was wrong to
have held that the provisions of Section 308 of the 1999 Constitution did
not inure to his benefit. Let me say, In haste,
that the issue under consideration in this matter is not a post election
matter. Rather, it is one challenging the process by which the alleged
beneficiary of the provisions of the aforementioned section came to office
i.e. how the 2nd respondent came to be sworn in as the Governor.
Put in a simple but very clear manner, it is the right of the 2nd
respondent to step into the office of the Governor of Rivers State that is
in issue. It will be against the concept of true justice to hold or to
permit such a candidate in the person of the 2nd respondent to
take a cover under the provisions of Section 308 and thereby ward off the
right of an aggrieved and genuine person to examine, in the open, the
process by which he became the Governor. That will be injustice at a very
high level. It will be tantamount to shielding a person away from seeking a
redress from the seat of justice. The complaint here is not a post election
grievance; it is one in which the appellant is saying that the 2nd
respondent ought not, in law, to have been allowed to participate in the
gubernatorial race. In other-words, he is questioning the right of the 2nd
respondent to stand for the gubernatorial election in Rivers State. The
provisions of Section 308 of the Constitution are not there to be used as an
engine of fraud. Such a complaint or grievance pre-dates our election. It is
an inalienable right of the appellant as a person lawfully interested in the
position of the governorship of Rivers State to initiate process to examine
how his opponent, the 2nd respondent, came to occupy that
position at his (appellant) own expense. And as I have said, such a
complaint is a pre-election matter. It is the regular court as opposed to
the election tribunal that has jurisdiction to entertain such a suit. By
taking the action in the regular court, the 2nd respondent is not
in any way prejudiced and he cannot take a cover under the provisions of
Section 308 of the Constitution. Let it be said that exercise of one's right
injures nobody. Issue No. 1 on the cross-appellant's brief is consequently
answered in the negative. Issue No. 1 on each of the 1st
cross-appellant and 2nd cross-appellant is also answered in the
negative.
The 2nd
respondent/1st cross-appellant has in Issue No. 3 of the brief
relating to his cross-appeal contended that the entire proceedings relating
to this appeal are a nullity for reason of failure to take viva voce
evidence in a suit commenced by a writ of summons/statement of claim in
respect of reliefs claimed by the appellant. It was his (cross-appellant)
argument that, having regard to the type of the reliefs sought which is
declaratory in nature and which, according to him, by a long line of
judicial decisions, is never granted without evidence in support; the whole
proceedings, he finally submitted should be declared a nullity. The
appellant/cross-respondent has argued to the contrary. It is clear from the
record of proceedings that the parties voluntarily settled issues for
determination at the trial court. Again, by consent, all the parties
tendered documents which they would rely upon. Let it be said that evidence
can take the form of documents or oral testimonies. There is nothing on the
record to show that any of the parties objected to this mode of trial.
Indeed, they all conducted the case to the logical conclusion before the
trial court. That a court, particularly, a court of last resort has a
fundamental duty to safeguard fundamental rights of citizens admits of no
doubt. A right that inures to the benefit of the entire public can never be
waived. Nobody, not even the State can waive the rights entrenched in
statutory or constitutional provisions which have been made in favour of the
whole country. It is clearly not Pro Publico but Contra Publico to introduce
the doctrine of waiver to such rights. See
A-G Bendel State v. A-G
Of The Federation & Ors.
(1985) 10 S.C. 1. But where, as in the instant case, a person in
dealing with another is confronted with two alternatives and mutually
exclusive procedures, in dealing with the case, between which he can make
his election and he has voluntarily made his election in favour of one of
the procedures to the exclusion of the other and he has, by that conduct,
led the other to believe that he was voluntarily adopting that particular
line of approach, he cannot, in law and equity, afterwards resort to the
cause which he has voluntarily declared his intention of rejecting. This, in
a nutshell, is the simple explanation of principle of waiver.
The right here as to how to start his case is conferred
solely for the benefit of any of the parties to litigation. Each
party or litigant is sui juris; none of them is under any legal disability
to forgo or waive any of the two procedures open to them in the instant
case. Having made an election, a party cannot later set to revert to the
other. That principle is to the effect that where an action was commenced by
any irregular procedure and a defendant took steps to participate in the
proceedings, as in the instant case, he cannot later be heard to complain of
the irregularity as a person will not be allowed to complain against an
irregularity which he himself has accepted, waived or acquiesced. See
United Calabar Co. v. Elder Dempster
Lines Ltd (1972) 1 All NLR (P.2) 244 and Ariori & Ors v. Elemo & Ors (1983)
1 S.C. 13. Issue No. 3 on the 1st cross-appellant's brief is
therefore answered in the negative and similar Issue No. 3 on the
appellant/cross-respondent's brief is answered in the negative.
What
Order to Make?
Before I embark on answering
this all-important question, I wish to say that this court (the Supreme
Court) being the final court of the land, is under a compelling duty to
settle all issues arising from or appurtenant to any appeal before it. The
judgments of this court must not be final only in name, but must be seen to
be really final in the sense that they have legal bite that makes the
judgments truly conclusive. All issues that will make its judgments
reasonable and conclusive must be clearly addressed by the Supreme Court.
This court has a standing and rigid invitation to do substantial justice to
all matters brought before it. Justice to be dispensed by this court must
not be allowed to be inhibited by any paraphernalia of technicalities. I go
further to say that it is now gradually becoming a cardinal feature of
judicial impartiality in this country that judges serving on the bench
should be and indeed, are generally political
eunuchs. But sight must never be lost of the fact that judges do decide
political matters daily. They are human beings like the rest of members of
our larger society. When restraint is constantly exercised by judges in
passing harsh comments in their judgments on" matters of monumental
importance to our society and they (judges) subtly send across wise
counselling in the most temperate language, which is often ignored, a judge
must then realize that a just decision is more likely to rear its head if he
(the judex) recognises the responsibility to be very frank and pungent in
his advice. It is in the true realisation of this highly valued judicial
responsibility that I shall approach this case that produces a sour taste in
the mouth; that desecrate all decency in human environment- I shall preface
this discourse with certain facts which are very much germane.
In the instant matter, certain crucial facts admit of no controversy
among the parties. The
appellant in this appeal was one of the eight members of the political party
called Peoples Democratic Party - the 3rd respondent/2nd
cross-appellant, he participated in the primaries
organized by the said P.D.P. under its constitution
and
electoral guidelines for the purpose of electing the party's governorship
candidate for the 14th April 2007
governorship election in Rivers State. He won the primaries
convincingly; he scored 6,527 to come first, while the second person to him
scored zero; suffice it to say the third person scored 28, the fourth scored
4; the fifth person scored 6; the sixth scored 10 and the seventh and eight
candidates scored zero each. Thus, the appellant scored 6,527 out of the
total votes of 6,577 cast at the primaries- The 3rd respondent
(P.D.P.) the sponsoring political party voluntarily forwarded the name of
the appellant to the 1st respondent (Independent National
Electoral Commission - INEC) as the party's candidate for the governorship
election in Rivers State slated for the 14th April, 2007. The 1st
respondent not only acknowledged the name of the appellant as the party's
candidate for the said election, it went ahead to cause the said name to be
published in the constituency as required by the Electoral Act, 2006. But,
by a letter dated 2nd February 2007 admitted as Exhibit D, the 3rd
respondent (P.D.P.) purported to substitute the name of the 2nd
respondent/1st cross-appellant for that of the appellant as its
candidate for the same election scheduled for 14th April, 2007.
It is important for me to say at this stage, that the 2nd
respondent/1st cross-appellant (Celestine Omehia) did not
participate in the primaries organised by the party (P.D.P.). I have said
above that the substitution was illegal, null and void and of no legal
efficacy - the party having failed to comply with the provisions of Section
34 (2) of the Electoral Act 2006. I need not go over the reasoning I
advanced for declaring the substitution a nullity. The effect of what I said
above is that the appellant remained for the purpose of the 14th
April 2007 election, the candidate of the 3ld respondent
(P.D.P.). When the appellant noticed what the party did, he wasted no time
in seeking redress the particulars of which I have set out above. Despite
the fact that he (appellant) was in court, the 1st respondent
(INEC) went ahead to conduct the gubernatorial election and later swore-in
the 2nd respondent/1st cross-appellant as the Governor
of Rivers State. The conduct of 1st respondent, to say the least,
is a brazen disrespect to the institution called The Judiciary, it is a
terrible slap on the face of The Law. Must the court of law fold its arms
and allow this brazen lawlessness go unchecked? I think not. While the case
was still pending before the trial court, the 3rd respondent
(P.D.P.) went ahead to dismiss the appellant as a member of its party, in my
view, to foist a situation of fait accompli. I still repeat that the primary
duty of the court is to do justice to all manner of men who are in all
matters before it. It then seems to me clear, that when the court sets out
to do justice so as to cover new conditions or situations placed before it,
there is always that temptation, a compelling one, to have recourse to
equitable principles. A court, in the exercise of its equitable jurisdiction
must be seen as a court of conscience. And judges who dispense justice, in
this court of law and equity must always be ready to address new problems
and even create new doctrines where the justice of the matter so requires.
Having said that the
substitution was null and void; the appellant's position as the candidate of
the P.D.P. remains unshaken. This is so because equity looks on that as done
which ought to be done or which is agreed to be done; the
Maxim is Aequitas Factum Habet Quod
Fieri Oportuit. I must not fail to say that this Latin Maxim only
applies to those who have a right to pray that the thing should be done -
the appellant, given the facts of this case, is certainly within that
bracket. It is said that the true meaning of the Maxim is that equity will
treat the subject-matter, as to collateral consequences and incidents, in
the same manner as if the final acts contemplated by the parties had been
done exactly as they ought to have been. See
Fonblanque's Treatise
Of Equity (5th Edition) page 419.
This Maxim was practically and clearly explained in the case of
Adefulu V. Okulaja (1996) 9 NWLR
(pt.475) 668 cited by the appellant in his brief of argument; at page
694 Ogundare, JSC (of blessed memory) reasoned thus: -
"Much consideration was given by the trial judge to the fact that the 1st
defendant/appellant occupied the throne of Olofin of Ilisha/Remo defacto
from March 1981 up to 7th December 1989. With profound respect to
the learned trial judge, I think, he was without realising it swimming in a
deep sea. When an appointment is declared null and void, all it means is
that the appointment was never made and all acts of the purported appointee
when the defacto held the appointment are unlawful, null and void and of no
effect. The result of a decree
of nullity of marriage is that not only are the parties not now married, but
they never were ..............
Null and void means that which binds no one or is
incapable of giving rights
under any circumstances, or that which is of no effect.
By
the judgment of the Court of Appeal
in 1987,
and affirmed by the Supreme Court
in 1989 declaring the 1981
appointment of the 1st
appellant null and void,
that appointment had
no force or effect; it had no legal
efficacy and became
incapable of confirmation or ratification.
It is not merely avoidable but
void
ab initio
that is from the beginning. A nullified appointment cannot in my respectful
view, be a
legal foundation upon which any
lawful right could be
hoisted. It may however be that the doctrine of necessity or implied mandate
may apply to give validity
to some acts of a
usurper during
the period of
his de facto control of the
office, that issue will only come
up for consideration when the validity of his acts is called into
question."
From what I have been saying,
the law recognises the appellant as the lawful candidate of P.D.P. for the
14th April 2007 gubernatorial election for Rivers State. But, in
reality, the appellant never stood for that election or better put, he was
prevented from standing for the election. It has therefore been argued that
having not stood for that election, he could not
be heard to be occupying the exalted position. However, I hasten to say that
under the present dispensation, independent candidates are no longer
permitted to contest an election. To be eligible to contest an election, a
candidate must be a member of a political party. The Constitution of the
Federal Republic of Nigeria, 1999 recognises this fact hence it vests the
political parties with the exclusive function of canvassing for votes for
candidates at election and of contributing to the campaign funds of
candidates at election. Section 221 of the 1999 Constitution provides: -
"No association, other than a political party, shall canvass for votes for
any candidate at any election or contribute to the funds of any political
party or to the election expenses of any candidate at an election."
Flowing from the above
provision of the Constitution, it is my view that it is the political
parties that the electorate do vote for at election time-. For the umpteenth
time, I say that is my judgment that the candidate of the P.D.P. in the
afore-mentioned election was the appellant. Also, the person held out by Mr.
Celestine Omehia as his running mate for the position of Deputy Governor of
the State must, in practice, have received the approval and the blessing of
the party (P.D.P.). He must be deemed to have been held out as the deputy to
the person they (P.D.P.) presented as their lawful candidate, who, in the
instant ease, is the appellant. To now order a fresh election will be most
unjust. The political parties that contested the election against Peoples
Democratic Party and lost out will now have an unmerited second bite. From
the record before us, one of such political parties is already before the
Election Tribunal seeking to upturn the purported return of Celestine Omehia
as the candidate of the party that" won the election. To now order a fresh
election in the circumstances of this case will negate all notions of
equitable principles and of course, true justice. That is why I have had
resort to equitable principles for one purpose alone and that is to assist
law. After all, equity does not make law, it is
only there to assist law. As was said by Eso JSC in
Trans Bridge Co. Ltd v. Survey Int.
Ltd (9186) 4 NWLR (pt.37) 576,
Law Lord said at page 592 and I quote him: -
"Equity is not a warlord determined to do battle with the law. It is
part
of a legal system
which has mixed with the law and
the admixture is for the
purpose of achieving justice.
The well known Maxim is
"Aequitas Non Facit Jus, Sed Juki
Auxiliatur"
Before I end the discourse in
this appeal, I shall like to say a few words about the unfortunate scenario
that has avoidably led to this calamitous situation. It is true that in
modern democratic societies, judges occupy a privileged position. Let me say
that that privilege springs from public recognition that democratic
government and society as a whole can only function fairly and properly
within a framework of laws, justly, fearlessly and fairly administered by
men and women who have no obligation save to justice itself. I hasten to
enter a caveat, and it is that it does not of course mean that judges are
licensed to do exactly as they like; quite the opposite. They must allow
themselves to be guided by well tested principles so fashioned that lead to
justice. The decision to substitute Celestine Omehia for Rotimi Chibuike
Amaechi by the 3rd respondent (P.D.P.) during the period of
pending gubernatorial election represents a display of very grave display of
political rascality and an irresponsible and wanton disrespect for rule of
law. No responsible person or group of persons who parade themselves as
having respect for rule of law and due process,
can be credited with such a dastardly act. The 1st respondent, by
acceding to the request of the 3rd respondent for the
substitution, has painted a picture of itself as a spineless body
whose pre-occupation is dissemination of
injustice. It (1st respondent) has forgotten or it has thrown
into the winds the position carved for it by the Constitution of the land -
An Unbiased Umpire.
Finally, on this point, I wish
to say that in all countries of the world which operate under the rule of
law, politics are always adapted to the laws of the land and not the laws to
politics. Let our political operators allow this time-honoured principle to
sink well into their heads and hearts. The vicious acts of the dramatis
personae in this case that have led to this unfortunate and time-wasting
court case must not he allowed to repeat themselves. No decent and polished
characters can be credited with such vicious acts.
In conclusion, for the little
reasons I have given above, but most especially for the comprehensive and
very lucid reasoning contained in the lead judgment of my learned brother,
Oguntade JSC, which reasoning I hereby adopt, it is my judgment that this
appeal is very much meritorious. The appeal is hereby allowed while the
cross-appeal is dismissed. I also declare Amaechi as the winner of the said
election. I abide by all other consequential orders made by my learned
brother in the lead judgment including order as to costs.
Counsel
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