Professor Jerry Gana, Con V. Social Democratic Party & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

By his Amended Originating Summons at the High Court of the Federal Capital Territory (FCT), Prof. Jerry Gana, CON (hereinafter called “the Appellant”), had raised the following questions and sought 13 reliefs, to wit:

QUESTIONS FOR WHICH DETERMINATION IS SOUGHT

1. Whether having regard to Section 87(9) of the Electoral Act, 2010 (as amended) and Article 2 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended), the 1st Defendant is bound by the provisions of Article 15.3(i) & (ii)(a) of its own Constitution, to wit, relation to the principle of rotation of political offices such that the office of the President and National Chairman of the 1st Defendant shall rotate between the South and North and amongst the six (6) geopolitical zones.
2. Whether having regard to Section 223(1)(a) and (b) and 2(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended) and given the fact that the National Chairman of the 1st

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Defendant, the person of the 2nd Defendant is from the South, the office of the President of the Federal Republic of Nigeria for the 2019 Presidential election is not deemed zoned to the North to the exclusion of the South.

3. Whether having regard to the Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 87(9) of the Electoral Act, 2010 (as amended) and Article 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended) which entrenches the principle of zoning and rotation of political offices such that the office of the President and National Chairman of the 1st Defendant shall rotate between the South and North and bearing in mind the fact that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the 5th Defendant was not automatically disqualified from participating in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and from being fielded as the Presidential candidates of the 1st Defendant for the 2019 Presidential election.
4. Whether the participation of the 5th Defendant who

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is from Southern Nigeria, the same zone with the 2nd Defendant in the Presidential Primaries of the 1st Defendant conducted on 6th October, 2018 on his purported return as the Presidential flag bearer or candidate of the 1st Defendant in the 2019 Presidential election is not a gross violation of Article 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended).

5. If the answers to issues 1, 2, 3 and 4 above are in the affirmative whether the purported participation of the 5th Defendant in the Presidential Primaries of the 1st Defendant on 6th October, 2018 ought not to be deemed as null and void and of no effect and the purported votes of 812 votes ascribed to him and/or allegedly scored by the 5th Defendant in the said Presidential Primaries are not deemed wasted votes.
6. If the answers to issues 1, 2, 3, 4 and 5 above are in the affirmative, whether the Claimant, a Presidential aspirant from the North who participated in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and who scored 611 votes ought not to be declared as the candidate with majority of lawful votes cast at the said Presidential

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Primaries and as such the name of the Claimant ought to be forwarded and/or ought to have been forwarded to the 6th Defendant by the 1st Defendant as its Presidential candidate for the 2019 Presidential election.

ALTERNATIVELY

7. Whether by the combined effect of Section 87(1), (2), (7) and (9) of the Electoral Act, 2010 (as amended) and Articles 2, 15.1, 15.2 (1), 15.4(i) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP) (as amended), the 1st Defendant is duty bound to issue Guidelines for the conduct of its Presidential Primaries and whether the failure of the 1st Defendant to issue such Guidelines for its Presidential Primaries conducted on 6th October, 2018 rendered the said Presidential Primaries null and void and of no effect whatsoever.

STATEMENT OF RELIEFS SOUGHT

1. A DECLARATION that the 1st Defendant and by extension, all its members are bound by the provisions of Articles 2 and 15.3(i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) in relation to the principle of rotation of political offices to the effect that the office of the Presidential and National Chairman of the

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1st Defendant shall rotate between the South and North and amongst the six(6) geo-political zones in Nigeria.

2. A DECLARATION that by reason of Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3 (i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) and given the fact that the National Chairman of the 1st Defendant, that is to say, the 2nd Defendant is from the South, the office of President of the Federal Republic of Nigeria for 2019 Presidential Election from the perspective of the 1st Defendant is deemed to have been zoned to the North to the exclusion of the South.
3. A DECLARATION that by virtue of Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3(i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) which entrenches the principle of zoning and rotation of Political Offices to the effect that the President and National Chairman of the 1st Defendant shall rotate between the South and North, the 5th

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Defendant was disqualified or stood disqualified from participating in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and from being fielded as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election more so that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the same zone with the 5th Defendant.

4. A DECLARATION that the participation of the 5th Defendant who is from Southern Nigeria in the Presidential Primaries of the 1st Defendant conducted on 6th October, 2018 and his purported return as Presidential Candidate of the 1st Defendant in the 2019 Presidential Election is a gross violation of Articles 2 and 15.3(i)(ii)(a) of the Constitution of Social Democratic Party (SDP), 2018 (as amended) more so that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the same zone with the 5th Defendant.
5. A DECLARATION that the participation of the 5th Defendant in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and the purported votes of 812 votes allegedly scored by the 5th Defendant in the said Presidential Primaries are null

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and void and of no effect and as such the 812 votes ascribed to the 5th Defendant thereof are deemed wasted votes.

6. A DECLARATION that the Claimant, a Presidential aspirant from the North who participated in the Presidential Primaries of the Defendant on 6th October, 2018 and who scored 611 votes ought to be declared as the candidate with majority of lawful votes cast at the said Presidential Primaries.
7. A MANDATORY ORDER compelling the 1st, 2nd, 3rd and 4th Defendants to substitute the name of the 5th Defendant already forwarded to the 6th Defendant with the name of the Claimant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election.
8. A MANDATORY ORDER compelling the Defendant to accept the name of the Claimant as the Presidential Candidate of the 1st Defendant of the 2019 Presidential Election and/or substitute the name of the 5th Defendant with the name of the Claimant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election.
9. A PERPETUAL INJUNCTION restraining the 5th Defendant from parading himself as the Presidential Candidate of the 1st Defendant in the 2019

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Presidential Election with respect to the office of the President of the Federal Republic of Nigeria.

10. A PERPETUAL INJUNCTION restraining the 1st, 2nd, 3rd and 4th Defendants from holding out, supporting, sponsoring and/or campaigning for the 5th Defendant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election with respect to the office of the President of the Federal Republic of Nigeria.

ALTERNATIVELY

11. A DECLARATION that by the combined effect of Section 87(1), (2), (7) and (9) of the Electoral Act, 2010 (as amended) and Articles 2, 15.1, 15.2(1), 15.5(1) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended), the 1st Defendant is duty-bound to issue Guidelines for the conduct of its Presidential Primaries and as such the failure of the 1st Defendant to issue such Guidelines for its Presidential Primaries conducted on 6th October, 2018 rendered the said Presidential Primaries null and void and of no effect whatsoever.
12. AN ORDER setting aside and/or nullifying the Presidential Primaries conducted by the 1st Defendant on 6th October, 2018 as completely null and void and of no effect for want of compliances with Articles 15.1, 15.2(i), 15.4(i) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended)
13. ANY FURTHER CONSEQUENTIAL Relief(s) as the Honourable Court may deem just and expedient in the circumstances.

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The Amended Originating Summons was supported by an affidavit to which several documents were exhibited. The 1st – 5th Respondents, as Defendants, filed Counter-Affidavit and joined issues with the Appellant. In response the Appellant filed a Further and Better Affidavit.

The Appellant, in paragraphs 24 and 25 of the Supporting Affidavit, had averred that the 1st Respondent, the Social Democratic Party (SDP), did not issue Guidelines for the conduct of the Presidential Primary Election that took place on 6th October, 2018. The 1st – 5th Respondents not only categorically deny this fact, in paragraph 15 of the Counter- Affidavit, they produced, as Exhibit SDP2, Guidelines of Social Democratic Party (SDP) – Presidential Primary 2018. The Further and Better Affidavit was completely silent on this. Thus, as facts not disputed are taken as established; the alleged failure of the 1st Respondent to issue Guidelines for the Presidential Primary election ceases to be an issue. Exhibit SDP2 was the Guidelines Social Democratic Party (SDP) – Presidential Primary 2018.

Having read the briefs or argument exchanged by the Appellant and the 1st -5th Respondents, it

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appears to me that the broad issues on which this appeal spins are –

i. Whether the 1st Respondent, for the purposes of the Presidential Primary election it conducted on 6th October, 2018, was bound by its Amended Constitution Exhibit 1

ii. What is the correct interpretation of Article 15.3(i) & (ii)(a) of the SDP Constitution (as amended in 2018), Exhibit 1; and

iii. Whether Article 15.3(ii)(a) of Exhibit 1 is inconsistent with Sections 42, 131 and 137 of the Constitution of the Federal Republic of Nigeria 1999 as amended

The Parties, particularly the 1st – 5th Respondents and the Appellant, are ad idem that the SDP (1st Respondent) at its National Convention on 6th October, 2018, having ratified and adopted the amended Constitution, Exhibit 1, now has a new or amended Constitution that has replaced its 2011/2012 Constitution, Exhibit J. All that is needed, by virtue of Article 25.1 of Exhibit J, is the vote of “a minimum of two-thirds of financial members of the party present and voting at the National Convention, provided that notice of such amendment shall have been filed with the National Secretary not less than 30 days before the

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date of the National Convention and circulated not less than 14 days before the date of the convention”. The procedure by which Exhibit I was produced is not in dispute. All concerned are in agreement, apparently, that on 6th October, 2018 the National Convention of the SDP ratified and adopted Exhibit I as the amended Constitution of the SDP.

Section 222 (d) of the Constitution of the Federal Republic of Nigerian (CFRN), 1999, as amended, enjoins any political party or association that has altered its registered Constitution to register same “in the principal office of the Independent National Electoral Commission within thirty days of its making of such alteration”. This requirement is clearly not a precondition for the Constitution, as altered, to become effective or operational. The lower Court, in my firm view, was in error when it held at page 994 of the Record that after the National Convention had ratified and adopted Exhibit 1 on 6th October, 2018, the said Constitution, as amended –

did not become operative on the same 6/10/2018 when it was ratified but on 8/10/2018 when it was sent to the (Independent National Electoral

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Commission (INEC) for further necessary action. So, the 2011/2012 Constitution (Exhibit J) continued to govern the conduct of the affairs of the (SDP, & 1st Respondent) up to the 8/10/2018. The holding of the trial Court that the amended Constitution became operational immediately upon its ratification and adoption is wrong.

The clear and unambiguous provisions of either Section 222 (d) of the CFRN, 1999 as amended, or Article 25.1 of Exhibit J do not admit or provide the basis for this holding of the lower Court. It is therefore the lower Court, not the trial Court, that erred in this regard.

The cardinal principle of Interpretation is that when the words of the statute or instrument are clear and unambiguous they must be given their ordinary natural simple meaning. A Court of law, in its interpretative jurisdiction, lacks jurisdiction to import or impute into a statutory provision words which are not therein used. Its duty being only to interpret the provisions in order to bring out the meaning of the words used in the statute and the intent of the law maker: UNIPETROL v. E.S.B.I.R (2006) ALL FWLR (pt. 317) 413 at 423; OBUSEZ v. OBUSEZ (2007) 30 NSCQR 329.

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There is nothing whatsoever to suggest that the National Convention of the SDP (1st Respondent) did not intend that its amended Constitution, Exhibit I, should not take immediate effect or commencement from the date the amended Constitution, Exhibit I, was ratified and adopted on 6th October, 2018. Amendment being a formal revision or addition to a statute or instrument, takes immediate effect unless the contrary is expressly stated. An amendment, whenever it is made to a document, dates or relates back to the original date of the document so amended: ROTIMI v. MACGREGOR (1974) II SC 133; THE NIGERIAN AIR FORCE v. JAMES (2002) 18 NWLR (pt. 798) 295; (2002) 12 SCNJ 379; FRN v. ADEWUNMI (2007) 10 NWLR (pt. 1042) 399. However, all actions taken previously before the amendment still remain valid.

By way of analogy: it is provided in Section 2 (2) of the Interpretation Act that where no other provision is made as to when a particular enactment is to come into force, it shall come into force when the Act is passed or on the day when the enactment is made. Section 4 (2) (a) of the Interpretation Act provides further

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that where an enactment is repealed and another enactment is substituted for it, then the repealed enactment shall remain in force until the substituted enactment comes into force.

The Counsel, respectively for the Appellant and 1st – 5th Respondents, belaboured the issue as to the effect the amended Constitution, Exhibit I, had on things done or actions taken under Exhibit J, before Exhibit I became effective or operational. In AFOLABI v. GOVERNOR, OYO STATE (1985) 2 NWLR (pt. 9) 734 at page 752 it was held per Aniagolu, JSC, that “a statute does not retrospectively abrogate vested rights”. On this, Mr. Edoigiawerie, of Counsel to the 1st – 5th Respondents, submits that the trial Court was wrong in interpreting Article 15.3 (ii)(a) of Exhibit I to the effect that the provision disqualified the 5th Respondent. I agree. The transitional provision of Exhibit I, in Article 24.9 thereof, providing that “all documents of the Party existing prior to the adoption of this amended Constitution (2018) shall remain valid” appears, in my view, to give force to the presumption that vested rights prior the adoption of Exhibit I remain valid and extant.

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Exhibit I, is the subsisting and extant Constitution of the SDP (1st Respondent). In absence of any contrary provision, the commencement date of Exhibit I was the said 6th October 2018 when it was ratified and adopted.

It does appear from the brief of argument of the 1st – 5th Respondents that they dispute the contention of the Appellant, premised on ONUOHA v. OKAFOR (1983) 2 SCNLR 244; PDP v. SYLVA (2012) 13 NWLR (pt. 1316) 85 (SC) at 154; LAU v. PDP (2018) 4 NWLR (pt. 1608) 60 (SC) at 123; APC v. KARFI (2018) 6 NWLR (pt. 1616) 479 (SC) at 526, that a political party, like any other organisation, is bound by its Constitution. In all the foregoing cases, this Court took a firm position that a political party is bound by its own Constitution. All members of the political party are also bound by the provisions of the Constitution of the political party they belong. Obaseki, JSC in ONUOHA v. OKAFOR (supra) had put it forcefully thus –

The party like any other corporation, operates within the guidelines, the powers and duties set out in its Constitution. All its members are bound by its provisions and their rights and

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obligations created by their Constitution can be remedied as provided by the Constitution if breached by any of its members –

Accordingly, the rights and obligations of the members of the SDP (1st Respondent), including the Appellant and the 5th Respondent, are defined by their party Constitution. They, both the party and its members, “are bound by its provisions and their rights and obligations created by their Constitution can be remedied as provided by the Constitution, if breached” either by the party or any of the members of the party.

The Lower Court found that the Appellant, as the claimant at the trial Court, had brought this suit to enforce against the 1st 5th Respondents his right under Exhibit I the 2018 Amended Constitution of the SDP/1st Respondent. He premised his case on Article 15.3 (II)(a) of Exhibit I, claiming that by his party, 1st Respondent, not invoking its Constitution to disqualify the 5th Respondent as an aspirant who won the Presidential Primary election he had been prejudiced. He never, in first place, raised this issue either before or at the Presidential Primary Election convention. He

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is only now raising it after losing the election to the 5th Respondent.

The Appellant, from the affidavit in support of the Amended Originating Summons, particularly paragraph 39 thereof, expected the 1st Respondent, in furtherance of the SDP principle of Zoning and Rotation, to have Zoned the slot for the Presidential Candidate of the party (SDP) to the North since Chief Olu Falae (2nd Respondent) as from the South. He averred, on this premise, that the 5th Respondent, an indigene of Cross-River State in the South of Nigeria, was not qualified to contest the Presidential Primaries conducted on 6th October, 2018. On the footing of this assertion, in paragraph 39 of his supporting affidavit, the Appellant reasoned in paragraph 40 of the same supporting affidavit

That in the light of paragraph 39(b) above, I was deemed (supposedly) to have secured the highest valid votes cast at the said primaries and ought to have been returned as the duly nominated Presidential Candidate of the 1st (Respondent) for the office of the President of the Federal Republic of Nigeria.

He further averred, wishfully, that his “name ought to have been forwarded to the 6th

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(Respondent, INEC) by the 1st (Respondent) as its Presidential Candidate for the Presidential Election.”

There is no evidence on the Record that the National Working Committee (NWC) or the National Executive Committee (NEC) of the SDP (1st Respondent) had formally Zoned the Presidential Candidate of the party to the North or to the South, in furtherance of its zoning principle in Article 15.3(ll)(a) of Exhibit l. The Appellant’s grouse, apparently, is that the party allowed aspirants, including the 5th Respondent, from the South to contest freely with other aspirants (including himself) from the North. There is also no evidence that the Appellant, by way of a preliminary objection, protested the free-for-all contest, between the aspirants from the South and the North, before the Presidential Primary election was conducted on 6th October, 2018. He seemed to have, himself, acquiesced in it. To underscore this acquiescence, it is averred in the counter-affidavit, paragraph 17 thereof, of 1st 5th Respondents that the Appellant “participated in the primary election conducted by the 1st (Respondent) without protest or objection made to

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(Respondents) during the screening exercise and the elective convention” of the 1st (Respondent). Exhibit SDP 5, Appellant’s Expression of Interest Form, wherein in Part D thereof, the Appellant signed an undertaking “to support whoever emerges as the winner of the position we are contesting for” was exhibited to the counter-affidavit. I have not seen any renunciation by the Appellant of the undertaking in Exhibit SDP 5 or a plea of non est factum, anywhere, in respect of that undertaking coming from the Appellant.

On the undertaking by the Appellant in Exhibit SDP 5, the 1st – 5th Respondents, in their joint Brief of Argument, submit on the authority of IGA v. AMAKIRI (1976) 11 SC 1 at 12 13; ODUA INVESTMENT v. TALABI (1997) 10 NWLR (pt. 523) 1 at 51; ARIORI v. ELEMO (1983) 1 SC 1; ADEDEJI v. NATIONAL BANK (1989) 1 NWLR (at. 96) 212 at 226; UDE v. NWARA (1993) 2 NWLR (pt. 278) 638 at 662; MABAMIJE v. OTTO (2016) 65.2 NSCQR 852 at 877; that it is unconscionable for a party who has benefited from an agreement to turn around to renege on his own undertaking, and the Appellant’s undertaking in Exhibit SDP 5 amounted to waiver of a legal right

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beneficial to him, and estoppel by conduct. It is doubtful if the Appellant, without the undertaking, would have been placed on the ballot as an aspirant. P. A. Akubo, SAN of senior Counsel for the Appellant, in the Reply Brief did not directly join issues on this. His response in paragraph 4.06 of the Reply Brief, evasively, is that the case of UDE v. NWARA (supra), as regards estoppel by conduct, “binds the 1st 5th Respondents hands and get feet with respect to the implementation of the Amended Constitution of the 1st Respondent before its final ratification on 6th October, 2018”.

I am in complete agreement with the 1st 5th Respondents that the Appellant’s undertaking in Exhibit SDP 5 is adverse to the case of the Appellant. The undertaking clearly makes it not right or unconscionable for the Appellant to litigate on the very cause of action he had elected, expressly, not to exercise his right of action to litigate, and had in fact emphatically represented to the electors and the other aspirants that he would “support whoever emerges as the winner of the position we are contesting for”. Equity acts in

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particularly on the conscience of the party against whom it is pleaded who, allegedly, had acted in a manner very iniquitous, unconscionable or immoral by operation of the rule of estoppel. In the words of Nnaemeka-Agu, JSC in UDE v. NWARA (supra) at page 662, a man is not allowed to blow hot and cold, to affirm at one time and to deny at the other, or, as it is said, to approbate and reprobate. Accordingly, on this principle and in view of his undertaking in Exhibit SDP5 the Appellant, a man of honour, is not allowed to mislead the 1st 5th Respondents into believing that he would support the winner of the contest between himself, on one hand, and the 5th Respondent and others, on the other hand, and later turn around to litigate against them, particularly the 5th Respondent who emerged as the winner of the contest.

It is clear to me, and I so hold, that the Appellant can waive the right to dispute and litigate on the outcome of the Presidential Primary election he took part in on 6th October, 2018 since the right is personal and beneficial to him as an aspirant: ARIORI v. ELEMO (SUPRA). The principle of estoppel by conduct, which has been

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codified into Section 169 of the Evidence Act, 2011, estops him from approbating and reprobating on his undertaking in Exhibit SDP5 to support whoever emerged from the contest he had with the 5th Respondent and others on 6th October, 2018. That undertaking obligated him as a man of honour, conscience and principle to support the 5th Respondent who emerged as the winner from the contest.

The Appellant had, under his issue 3, complained that the Lower Court raised the issue of waiver and estoppel by conduct viz a viz the Appellant’s undertaking in Exhibit SDP5 suo motu and decided the appeal on it without giving him an opportunity to be heard on it. The charge is false. The 1st 5th Respondents, as appellants at the Lower Court raised the issue in their ground 8 of the grounds of appeal. It was argued under issue 4 in paragraphs 7.22,7.23, 7.24 and 7.25 of their Appellants’ Brief, particularly at pages 878 and 879 of the Record. This complaint, being frivolous and reckless shall be and is hereby dismissed.

On this estoppel by conduct alone the Appellant’s action at the trial Court was frivolous,

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vexatious and an abuse of process for which, resultantly, the suit ought to have been dismissed. The Lower Court was in error when it dismissed the issue and failed to allow the appeal on it.

Five aspirants, including the Appellant and the 5th Respondent, contested on 6th October, 2018 to be nominated as the SDP’s Presidential Candidate. At the end of the exercise the scores for the aspirants, indubitably, are as follows

i. Donal Duke (5th Respondent) – 812 votes

ii. Prof. Jerry Gana (Appellant) – 611 votes

iii. John Dara – 104 votes

iv. Prof (Amb.) lyorwuese Hagher – 72 votes

v. Amb. Felix Osakwe -10 votes

Based on this result, the 5th Respondent was declared the winner of the contest. The complaint of the Appellant, expressed as his cause of action for this action, is that since the 2nd Respondent (Chief Olu Falae), the National Chairman of the SDP, is from the South and the 5th Respondent is also from the South; by operation of the principle of Zoning and Rotation in Article 15.3 (II)(a) of the Amended SDP Constitution 2018 Exhibit I, the 5th

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Respondent stands disqualified, as an aspirant to be the Presidential Candidate of the SDP (1st Respondent). The Lower Court, upon its dispassionate view of the said 2018 Amended Constitution of the SDP (Exhibit I), particularly Article 15.3 (II)(a) thereof, had held at pages 999 100 and 1011 1012 of the Record (per Abdu Aboki, JCA), thus

I have calmly and carefully read the 2018 amended Constitution (Exhibit I), I have not seen any provision therein that expressly states that a member of the party from any part of the country shall not aspire to be nominated as the party’s Presidential candidate in a general election if the holder of the office of the National Chairman of the party, at the material time, is from his part of the country.

There is nothing in Article 15.3 (II)(a) or any part of Exhibit I that suggests so. It is obvious from the clear wordings at that provision that it merely lists the offices that shall rotate between the South and North and amongst the six Geopolitical Zones. The clear intendment is to avoid one Zone holding such offices permanently to the exclusion of other Zones. The provision (of

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Article 15.3 (II)(a)] did not state or suggest that if a person from one part of the country is already holding the office of the National Chairman of the party, no person from that part can be the Presidential candidate of the party in an election.

At pages 1011 1012 of the Record the Lower Court further proffered or found the ulterior intent or purpose of Article 15.3 (II)(a) of Exhibit I, to be purely political, thus

The case of the (Appellant herein) is that the 1st (Respondent SDP) has provided in Article 15.3 (II)(a) of its 2018 amended Constitution that a person cannot participate in the Presidential Primary election of the party or be its Presidential Candidate if the current National Chairman is from his part of the country. I have already held that Article 15.3 (II)(a) do (sic) not state or suggest such an arrangement. Even if such an arrangement is assured to be provided in that Constitution, it amounts to a mere internal political arrangement of a political party to help it win elections, that has nothing to do with the personal

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qualification of any member of the party to aspire to be its candidate in an election or the qualification of such a person for election to the office of President. Such an arrangement has nothing to do with the due process of the primary election.

The Appellant is not complaining about the due process of the primary election. Rather, he applauds it and posits that upon the disqualification of the 5th Respondent he, as the aspirant with the highest number of votes, should be deemed as the aspirant duly elected as the Presidential candidate of the SDP, 1st Respondent.

I had earlier in this judgment held that the 1st Respondent, the SDP, is bound by its 2018 amended Constitution, Exhibit I. The Appellant, according to his learned senior Counsel, had sought the Court to determine if Article 15.3 (II)(a) of Exhibit I, in relation to the principle of Zoning and Rotation, was not binding on the party, the 1st Respondent. My answer is in the affirmative. However, agreeing with the Lower Court that the Principle of Zoning and Rotation in Article 15.3 (II)(a) of Exhibit I, is “a mere internal political arrangement of a political party to

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help it win elections;” I add: consistent with the dictum of this Court in ONUOHA v. OKAFOR, (supra), that in respect of party’s political stratagem of winning elections the Courts absolutely lack jurisdiction to dabble in and/or enforce such political project.

The issue now is not whether the 2018 Amended Constitution of the SDP, Exhibit 1, and its constituent provisions, including Article 15.3(II)(a) are not binding on the SDP as a party. The issue now, rather, is one of the correct construction or interpretation to give to Article 15.3 (II)(a) of Exhibit I, that provides

Article 15.

15.3

i. The Party shall adhere to the Principle of Zoning and Rotation of Political Officers based on the principles of inclusiveness, justice, equity and fairness to all

ii. The Party shall therefore observe the following

(a) the office of the President and National Chairman of the party shall rotate between the South and North and amongst the Six (6) geopolitical Zones.

Article 15.3 (11) (a) of Exhibit I is couched in very clear and unambiguous terms. One of the cardinal principles of interpretation is that

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which restrains the Court from reading into the provisions words which are not found therein: EFFIONG v. HENSHAW (1972) 7 NSCC 329; SUNMONU v. OLADOKUN (1996) 8 NWLR (pt. 467)387; TUKUR v. GOVERNOR, GONGOLA STATE (1988) 1 NWLR (pt. 68) 39. This principle of construction or interpretation is completely an antithetic of the construction or interpretation the Appellant is imputing to Article 15.3 (II)(a) of Exhibit I and urging on us to uphold. I had reproduced in extenso passages in the judgment of the Lower Court, which in my humble view, represent the correct interpretation of Article 15.3 (II)(a) of Exhibit I.

The first duty of the Appellant is to show in what respects the Court below had erred, either in law or on facts, in its judgment on appeal to warrant the appellate Court to intervene and disturb the decision appealed. The Appellant, through his senior Counsel, has not been able to discharge this basic onus on him to establish that the Lower Court, from the portions of its judgment I had earlier reproduced, erred in its interpretation of Article 15.3 (II)(a) of Exhibit I.

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It is not one of the canons of interpretation for the Court to merely adopt the wishful thinking of a litigant in its interpretative jurisdiction. Lord Goddard, CJ in BARNES v. JARRIS (1953) 1 WLR 649 at 652, had advocated that the Court, in construing a statute or document, must apply certain amount of common sense. See also NIGERIA-ARAB BANK LTD v. COMEX (1999) 6 NWLR (pt. 608) 648 at 669 per Oguntade, JCA (as he then was). Common sense was, in actuality, applied by the Lower Court in their construction or interpretation of Article 15.3 (II)(a) of Exhibit I. I cannot therefore fault the judgment the subject of this appeal.

The Appellant brought the suit on the Amended Originating Summons majorly for the trial Court to declare that, by the 1st Respondent’s principle zoning and Rotation contained in Article 15.3 of the Amended SDP Constitution (2018), Exhibit I, the 5th Respondent should not be a Presidential Candidate of the 1st Respondent since the 2nd Respondent is the extant National Chairman of the Party and both, the 2nd and 5th Respondents, are from the South of the Country. The suit raises no issue of disqualification under the CFRN,

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particularly Sections 131 & 137 thereof as the lower Court rightly observed.

The lower Court having held, on the main substance of the Amended Originating Summons, that Article 15.3 (ii)(a) of Exhibit I was “a mere Internal Political arrangement of the Political Party to help it win elections, and that has nothing to do to with the personal qualification of any member of the party to aspire to be its candidate in an election or the qualification of such a person for election to the office of President”, should have avoided its earlier opinion, appearing to have a semblance of obiter dictum, that the Appellant’s reliefs “would violate the 5th (Respondent’s) fundamental right to freedom from discrimination guaranteed by Section 42(1)(a), (2) of the 1999 Constitution”. On this unwarranted excursion the lower Court then erroneously opined:

“so the reliefs claimed in the suit – are unconstitutional, illegal and unenforceable”.

While this opinion was expressed in error and was completely uncalled for, considering the narrow confines of the suit; it does no structural damage to my view of the Appellant’s suit being in substance very frivolous and vexatious.

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The totality of all I have been labouring to say is that this appeal, like the Amended Originating Summons, is a frivolous and vexatious exercise of the Appellant’s right of access to the Court seeking to redress a right he had earlier undertaken not to pursue. The appeal therefore shall be, and is hereby, dismissed in its entirety. The Appellant shall pay as costs the sum of N3,000,000.00 to the 1st – 5th Respondents.

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SC.115/2019