Rt. Hon. Chibuike Rotimi Amaechi V. Independent National Electoral Commission (Inec) & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an appeal against the judgment of the Federal High Court sitting in Abuja, delivered on the 15th of March, 2007. By a writ of summons filed on 21/1/07, the plaintiff, now appellant before this court Honourable Chibuike Rotimi Amaechi claimed against the defendant Independent National Electoral Commission as follows:-
(1) A declaration that the option of changing or substituting a candidate whose name is already submitted to INEC by a political party is only available to political party and/or the Independent National Electoral Commission (INEC) under the Electoral Act 2006 only the candidate is disqualified by a court order.
(2) A declaration that under 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 party has done its own screening and submitted the name of the plaintiff or any candidate to the Independent National Electoral Commission (INEC)
(4) A declaration that the only way Independent National Electoral Commission (INEC) can disqualify, change or substitute a duly nominated candidate of a political party is by court order.
(5) A declaration that under Section 32(5) of the Electoral Act 2006, it is only by 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 candidate of the Peoples’ Democratic Party PDP for the April 13, 2007 Governorship Election in Rivers State.
(8) A declaration that it is unconstitutional, illegal and unlawful for the defendant to change the name of the plaintiff as the governorship candidate of Peoples’ Democratic Party PDP for Rivers State in the forth coming 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, until a High Court disqualifies the plaintiff or until cogent and verifiable reasons are given to the defendant by whosoever desire to make the change.
(9) An order of perpetual injunction restraining the defendant from changing or substituting the name of the applicant 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.
The 2nd and 3rd Respondents before this court were joined as plaintiffs by order of court. Whereupon the appellant amended the writ and statement of claim as follows:-
(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 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 Peoples’ 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 Defendant 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 forth coming 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 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.
Vide pages 63-70 of the record of appeal. At the trial, the parties joined issues which called for filing of each and respective issues for determination. Documents were tendered as exhibits A-F by consent. Vide pages 167-178 of the record of appeal. The facts of the case before the lower court are that the appellant as plaintiff emerged winner at the Peoples’ Democratic Party primaries conducted for the Rivers State governorship candidate for the April 2007 Election. He scored 6,527 votes pursuant to the primaries and his name was forwarded to the Independent National Electoral Commission (INEC) – the 1st respondent, alongside the names of the Governorship candidates from other States sponsored by Peoples’ Democratic Party, 3rd respondent, for the April General Elections. The appellant’s name was forwarded on the 14th of December, 2006 with affidavit sworn to at the State High Court Registry. His qualification to contest at the election was not challenged by anybody. By a letter exh D dated the 2nd of February, 2007, the name of the 2nd respondent was forwarded by the 3rd respondent to the 1st respondent as the candidate it was sponsoring for Rivers State Governorship election in April 2007 to replace the appellant.
Parties addressed the court on the basis of the issues settled and judgment was delivered by the trial Judge on the 15th of March, 2007.
Process of appeal was abridged in view of the urgency of the suit and the forthcoming election, parties filed their briefs. On the date fixed for the hearing of the appeal, the respondents raised preliminary objection to the hearing of the suit in that the appellant’s appeal is no longer competent. The ground for the objection was that the party which sponsored him the Peoples’ Democratic Party 3rd respondent, had expelled him from the party. This court upheld the objection and declined jurisdiction as by virtue of section 172(1) of the Constitution the appellant had to be sponsored by a political party to contest of the Election. An appeal on the issue went to the Supreme Court. The apex court held that this court was wrong to have declined jurisdiction in the appeal and ordered that the appeal be heard on its merit.
The appeal was eventually heard on the 16th of July, 2007. The appellant adopted and relied on the appellant’s brief filed on 5/4/07, and the appellant’s reply brief to the 1st respondent’s brief filed on 11/4/07 and the appellant’s reply brief to the 2nd respondent’s brief of argument on the cross-appeal. The appellant distilled one main issue from his grounds and additional grounds of appeal filed on 19/3/07 as follows:
“Whether having regard to the circumstances of this case the learned trial Judge was right in holding that the substitution of the plaintiff/appellant’s name with that of the 3rd defendant/respondent as the 3rd respondent’s lawful candidate for the April 2007 election in Rivers State was right.”
The 1st respondent adopted and relied on the 1st respondent/cross-appellant’s brief filed on 10/4/07. In the main appeal, the 1st respondent/cross-appellant settled one issue for determination as follows:
“Whether the defendant has the right to change its candidate within 60 days to the election in compliance with the provisions of the Electoral Act and if the answer is in the affirmation did the defendants comply with the laid down procedure for substitution of a candidate under the Electoral Act having regard to the circumstance of this case.”
The 2nd respondent/cross-appellant adopted and relied on 2nd respondent/cross-appellant’s brief filed on 10/4/07 where it formulated a single issue for determination based on the issue in the appellant’s brief namely:
“Upon a proper interpretation of Section 34 of the Electoral Act 2006 and a proper consideration of Exh D, the pleadings and circumstances of this case was the learned trial judge wrong when he held in effect that Section 34 of the Electoral Act 2006 did not operate to render void the substitution of the plaintiff/appellant with the 2nd defendant/Respondent/Cross -Appellant, as the sponsored candidate of the Peoples Democratic Party (3rd Respondent) for the gubernatorial election for Rivers State.”
The 3rd Respondent adopted and relied on the brief of argument filed on 10/4/07. The 3rd Respondent in the brief adopted the issue for determination as formulated by the appellant.
Before the parties were heard on their briefs the 1st Respondent was allowed to move a motion filed on the 10/4/07 praying this court for an order granting leave to the 1st Respondent/appellant 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 Amaechi
v.
(i) Attorney-General of the Federation
(ii) Economic And Financial Crimes Commission
(iii) Independent National Electoral Commission
(iv) Peoples Democratic Party
(v) Celestine Omehia a delivered by Federal High court Abuja by Kuewunmi J. on 30/3/07.
The learned senior counsel Chief Nwaiwu representing the applicant submitted that the Certified True Copy of the judgment sought to be brought in as further evidence was not available during the trial at the lower court. It was secured after the hearing and judgment. He as counsel did not participate at the trial but was only briefed on 3/4/07. The issue of the indictment of the appellant was raised at the lower court but no oral evidence was adduced in support. The conditions and procedure to adduce further evidence on appeal according to the case of-
Okoro v Egbuoh (2006) 15 NWLR pt 1001 are satisfied in this application. It will serve the interest of justice in the application. Mr. Fagbemi SAN learned senior counsel for the appellant/respondent in this application opposed the application as no prima facie reasons have been made out in support of the application, like the reason why the document could not be made available and the efforts made to procure it before the lower court. Very exceptional circumstance must exist to enable this court to exercise its discretion in favour of granting the application.
The document was not pleaded before the lower court, This court is urged to dismiss the application. The Appellant/Respondent cited the case of-
Akanbi v Alao (1989) 15 NWLR pt 108 pg 118 at pg 151.
Learned senior counsel for the 2nd Respondent Mr. Ukala and Mr. Nwaneri for the 3rd Respondent did not oppose this application.
The Court of Appeal Rules Order One Rule 19 (2) empowers this court 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. The application for leave to adduce further evidence on appeal is not one of the 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 oral evidence of parties on their different pleadings. Appellate courts are reluctant to grant application to hear further evidence on appeal except in very compelling circumstance such as:-
(A) The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial
(B) The evidence should be such as if admitted would have an important not necessarily crucial effect on the whole case.
(C) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible
(D) It is in the interest of justice in the case not only to one of the parties but that the evidence be admitted.
In the instant case, the 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 15/3/07.
Asaboro v. Aruwaji (1974) 4 SC 119
Akanbi v Alao (1989) 15 NWLR pt 108 pg 118
NDIC v SBN (2003) NWLR pt 801 pg 311.
The Appellant/Respondent opposed the application as the document was never pleaded. On perusal of the pages in 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 statement of defence of the 1st defendant, and on page 86 of the Record in the defendants statement of defence – paragraph seven. Even the appellant made heavy weather of the learned trial judges’ 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/74/2007 delivered on the 30th of March 2007 is hereby admitted as part of evidence in this appeal.
In another application filed on the 12/6/07 brought pursuant to section 308 of the 1999 Constitution and the inherent powers and sanctions of this court, the 2nd Respondent/Cross-Appellant/applicant prayed this court for:-
(a) An order of this honourable court striking out the appeal or alternatively staying 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.
(b) And for such further or other orders as this honourable court may deem fit to make in the circumstances. The ground upon which the application is predicated is that the pending proceedings in the Court of Appeal and Supreme Court are incompetent as they deal with unconcluded pre-election matters which are purely civil proceedings and not election matters. The issue for determination is that in view of the current status of the 2nd Respondent as the person holding the office of governor of Rivers State, this appeal or any civil proceedings cannot be continued against him during the period of his office as the Governor of Rivers State. The Civil proceedings include those commenced before his swearing-in on May 29th, 2007. No other law can undermine the provisions of section 308 of the 1999 Constitution. They are claims before the High Court for declaratory Reliefs and injunction commenced by writ of summons before the Federal High court.
The learned senior counsel for the 200 Respondent/Cross-Appellant/applicant cited cases like A.G Federation v. Alhaji Atiku Abubakar (2007) NWLR Pt 1035 pg 118
NDIC V Okem Ent. Ltd (2004) 10 NWLR pt 800 pg 107
Alamieyesegha V Teiwa (2002) FWLR pt 96 pg 552
Umanah V Attah (2005) 12 NWLR 938 pg 103 at 193
Global Excellence communications Ltd V Donald Duke SC/313/2006 unreported
Rotimi V Macgregor (1974) 11 SC pg 133 at pg 141
Tinubu V I.M.B. Securities Plc (2002) 1 NWLR pt 740
Mr. Fagbemi learned senior counsel for the appellant/Respondent replied that all the cases cited have distinguishing facts which differ them from this case in hand. He cited Sections of the Constitution Section 153 and 3rd Schedule and the Electoral Act and submitted that any matter arising from the Electoral Act is of necessity to be part of the Electoral Process. The complaint is all about the process of a governorship election. Section 308 is not meant to be applicable to an electoral process. Immunity cannot be invoked to cover an electoral process hence it will foist a situation of helplessness on the court. He referred to the cases of
Turaki V Dalhatu (2003) FWLR pt 120 pg 1378
Peter Obi’s case SC/23/2007 delivered on 14/6/07
I have carefully considered the submission of parties – provisions of Section 308 of the 1999 constitution are clear and unambiguously. They read as follows:-
Section 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 civil or criminal proceedings in which such a person is only a nominal party. There is no gainsaying about it that the 2nd Respondent/Cross-Appellant went through all the electoral processes before he was elected and sworn-in as governor of Rivers State on the 29th of May 2007. Furthermore the declaratory reliefs and injunctions sought were predicated on the provisions of the Electoral Act 2006. The action in court affects the eligibility of the 2nd Respondent to contest at the election of April 2007. The sum total of events are readily clothed as pre-election matters in that they come within the scope and purview of the provisions of the Electoral Act – particularly sections 32-34 of the electoral Act 2006.
What in essence is an election petition or in other words the Nature of election petition?
The question was adequately answered in the case of Buhari v Yusuf (2003)14 NWLR pt 841 pg 446 as follows:-
“The procedure in an election petition is largely governed by a law made specially to regulate the proceedings.
The jurisdiction of an election tribunal to deal with election matters is of very special nature different from that in ordinary civil cases. The proceedings are special for which special provisions are made under the Constitution. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition. An election petition can be regarded as a proceeding sui generis, not seen as a civil proceeding in the ordinary sense or as criminal proceedings.
Thus It is imperative that in an election petition, the procedure laid down in the Electoral Act and related documents must be strictly complied with. Pre-election matters can only be heard at regular courts while post election matters are to be heard by Election Petition Tribunals established by Section 285 of the 1999 Constitution to entertain such matters. Abubakar V INEC (2004) 1 NWLR pt 854 pg 207
Samamo V Anka (2000) 1 NWLR pt 640 pg 283.
The cases cited by the learned senior counsel for the 2nd Respondent are easily distinguishable from the case in hand. For the case of A-G. 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
This application therefore lacks merit it is hereby struck out.
In the appeal itself the appellant raised a lone issue which queries-
“Whether having regard to the circumstances of this case the learned trial judge was right in holding that the substitution of the plaintiff/appellant’s name with that of the 2nd Defendant/Respondent as the Defendants lawful candidate provide not only cogent but verifiable reasons for the change. While giving the cogent reason for the substitution the 3rd Respondent attributed same to error.
It is not feasible that the name of one who did not contest any primaries was omitted in error. The 1st Respondent/Cross-Appellant who raised the issue of his indictment by the EFCC and the acceptance of the Report by the panel set up by the Federal Government was relied upon as cogent and verifiable reasons for the substitution by the 3rd Respondent (Vide page 87 of the Record).
The appellant complained of denial of fair hearing which has an effect of nullifying the entire proceedings. The learned senior counsel Mr. Fagbemi contended that the learned trial judge deliberately failed to apply the ordinary meaning of Section 34(2) Electoral Act dealing with cogent reason. The 2nd and 3rd Respondents failed to comply with the mandatory meaning of Section 34(2) Electoral Act by preferring cogent and verifiable reasons for the substitution this court should hold it that there was no substitution. INEC could only take a decision after the party had given cogent and verifiable reason for the substitution. The procedure laid down by statute must be complied with strictly while the letter Exh D issued about substitution is void for failure to meet the mandatory provisions of Section 34(2) of the Electoral Act 2006; the appellant therefore remains unchanged as the sponsored candidate of the 3rd Respondent for the gubernatorial election for Rivers State. The learned senior counsel regarded the decision of the learned trial judge on the issue of indictment alleged by the 1st Defendant as a wrong conclusion which has occasioned a miscarriage of justice. The 1st Respondent having failed to prove the reason for the indictment the court she should have discountenanced the purported substitution of the plaintiffs name or set same aside.
The appellant justified from the issues argued that issue No three before the lower court was not abandoned. Since non-compliance with the provisions of Section 34(2) of the Electoral Act 2006, which are mandatory, any steps taken are rendered void. The Court is urged to allow the appeal and declare the appellant as the nominated candidate of PDP and declare the election of the 13th of April in Rivers State and the election of the incumbent governor the 2nd Respondent null and void.
The appellant supplied a list of authorities from which he cited cases in support of his submission, particularly
Adefulu V Okulaja (1996) 9 NWLR 475 page 668
Onaguluchi V Ndu (2001) 7 NWLR pt 712 pg 309 at 319
Dantata V Mohammed 2000 7 NWLR pt 664 page 176 at pg 200
Okoya V Santili (1990) 2 NWLR pt 131 pg 172 at pg 207
Ladoja V INEC unreported SC/120/2007 delivered 13/7/07
ARCON V Fassasi No.2 1987 3 NWLR pt 59 pg 1
The 1st Respondent/Cross-Appellant replied that the conclusion reached by the learned trial judge that the 1st and 3rd Respondents complied with the procedure laid down for substitution as stipulated in Section 34(1) and (2) at pg 185 of the record is right. The 3rd Respondent sent the appellant’s name as its candidate to the 1st Respondent on Exh D. The issue of his indictment was pleaded at paragraph 7 of the 1st respondent’s statement of defence before the lower court. The EFCC report and its acceptance by the panel set up by the Federal Government was judicially noticeable and the lower court should have taken same being acts of official bodies and enactments of the Federal Government.
The court would not have come to the conclusion that it was an extensive issue not before the court. It is of common knowledge that the appellants name appeared on the list published by EFCC for financial impropriety. The 1st Respondent concluded that the 2nd and 3rd Respondents complied with the procedure stipulated in Section 34(1) and (2) of the Electoral Act 2006 in substituting the appellant. The Respondent referred to cases particularly INEC V Action Congress (2007) 6 NWLR pt 1029 pg 142
The 2nd Respondent/Cross-Appellant emphasized that the main grounds of the appellant is his perceived erroneous interpretation of Section 34(2) of the Electoral Act. The learned senior counsel held that the provisions of section 34 of the Electoral Act is clear and unambiguous while Section 34(2) does not vest any right in the candidate instead the issue of change of a sponsored candidate is left entirely at the discretion of the party substituting and INEC. The authority in which a discretion is vested can be compelled to exercise same but to exercise same in any particular manner.
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 court holds that 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 circumstances of the case.
The 3rd respondent’s counsel submitted by way of reply that the application for substitution of the name of the appellant as the 3rd respondent’s gubernatorial candidate in Rivers State with the 2nd respondent was done within time under the Electoral Act, 2006. In the application to the 1st respondent, the 3rd respondent furnished cogent and verifiable reasons for the change of the name of the appellant.
That the issue of nomination and sponsorship of a candidate for election is an internal affair of the party and a court has no jurisdiction to adjudicate on any issue concerning same. The court is urged by the 3rd respondent to dismiss the appeal.
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 exh D a letter dated 2nd of February, 2007 acted upon by the 1st respondent/ cross-appellant. The facts leading to the substitution within the party caucau are as enumerated at the on set of this judgment. I do not wish to re-act then for the avoidance of repetition and tautology. Exh D the letter of substitution vide page 80 of the record of appeal reads:-
“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 Governor Candidate for Rivers State.
Barrister Celestine Ngozichim Omehia substitutes Hon. Rotimi Ameachi whose name was substituted in error.
This is for your necessary action
Signed Signed
Dr. Amadu Ali GCON Ojo Madueke CFR
National Chairman National Secretary
The judgment of the lower court on page 184 of the record the ultimate line reads:-
“Secondly any action taken by the 1st Defendant pursuant to exhibit D while the case is subjudice is set aside.” In effect this court had succinctly and silently set aside the substitution of the 2nd Respondent/cross-appellant by INEC and the replacement of the appellant with the 2nd Respondent as the Governorship candidate to contest election on platform of the 3rd Respondent – the Peoples Democratic party.
The lower court relied on the case of Ojukwu V Governors of Lagos. I wish to state categorically that this order is not tenable. Exh D was acted upon by INEC and the party – the 1st and 3rd Respondents as stipulated by the 1999 constitution the Supreme Law of this land which must prevail and the Electoral Act 2006, in the process of the 2007 general elections. In the absence of any specific order of injunction by court forestalling or restraining anything done by these bodies under the Electoral process that order of court cannot be sustained. The law stipulated time limit and INEC had a schedule which must fit into different dates if the election process.
The attitude of this court and the role of the judiciary in the interpretation of statutes, under the Constitution is as laid down in the case of Ararume V INEC 2007 9 NWLR pt 1038 pg 127. Section 6 (c) of the 1999 constitution vests the adjudicating role on the judiciary which imbibes interpretation of statutes. I have adverted my mind to the principle guiding the interpretation of statutes that where the provisions of a statute are ambiguous the court is bound to adopt a construction which is just and reasonable
Buhari V Obasanjo (2005) 2 NCLR pt 910 pg 241
INEC V Action Congress (2007) 6 NWLR pt 1029 Pg 142
Amaechi V INEC (2007) 9 NWLR PT 1040 PO 504
Abubakar V A-G Federation (2007) 3 NWL pt 1022 page 601.
Section 34 (1), (2) and (3) of the Electoral Act 2006 the subject matter in this controversy reads:-
Section 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.
Section 34 (2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.
34 (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.
I agree with the legislative background or history of this statute as produced by the Appellant and 2nd Respondent’s counsel. The position of this court in the interpretation of the provision of Section 34(1) and (2) of the Electoral Act 2006 remains unshakeable and undaunted and by way of recapitulation and emphasis are as follows:-
(1) That Section 34 of the Electoral Act is justiciable and Section 34(2) must be under judicial surveillance.
(2) There is no yardstick for the implementation of the requirement for cogent and verifiable reasons under Section 34(2) of the Electoral Act 2006.
(3) That cogent and verifiable reasons are subject to the discretion of the Party substituting and INEC.
(4) Section 34 must be interpreted to ensure fairness and justice in the circumstance of any particular case.
(5) The issue of nomination, sponsorship and substitution of candidates precedes election – and are thereby pre-election issues. No party member has a legal right to the nomination, and there is no corresponding obligation on the political party so as to pave way for the powers of the court to be invoked under Section 6 of the Constitution. In effect the court of law has no jurisdiction over issue of determination of intra party political matters. The issue of primaries, selection and substitution of candidates to contest in an elective office is the exclusive preserve of the political parties outside the competence of courts.
(6) Section 34(1) and 92) of the electoral Act has created and placed an extra duty on INEC in its role over the affairs of a political party in the area of substitution that the provision of the law is not sidetracked.
Onuoha V Okafor (1983) 2 SCNLR 244
Chukwu V Icheonwu (1999) 4 NWLR pt 600 pg 587
Dalhatu V Turaki (2003) 15 NWLR pt 843 pg 310
Jang V INEC (2004) 12 NWLR pt 886 Pg. 46
Rimi V INEC (2005) 6 NWLR pt 920 Pg. 56.
The learned senior counsel for the 2nd respondent/cross-appellant Mr. Ukata touched upon the principle governing the exercise of discretionary powers and that the authority in which a discretion is vested can be compelled to exercise that discretion but not to exercise same in a particular manner. On the other hand I hold that the authority to exercise a discretion can be ordered to be exercised in a particular manner given the peculiar circumstance of the case but what to watch out for is not to gag the exercise of the discretion in particular INEC should be able to decide on what is verifiable taken into consideration the surrounding facts of the case. There must be room according to the learned trial judge to verify the reason given to it by a political party for wanting to substitute its candidate for another if they require more particulars and to ask for more particulars. It is the court that cannot demand for such particulars. The reasons are simple and they are:-
(i) In the interest of doing substantial justice between the party and its members
(ii) So as not to compel INEC or the court if the need arises to resort to court action, to compel a political party to continue to sponsor a candidate that it no longer desires to sponsor.
I adopt the interpretation of Section 34(1) and (2) of the electoral Act 2006 as pronounced in the case of Ararume V INEC & 2 Ors 2007 9 NWLR pt 1038 Pg 127 as follows:-
(a) The word cogent means strongly and clearly expressed so as to influence what people believe. It also means compelling and convincing
(b) Verifying means to prove to be true to confirm or establish the truth or truthfulness of to authenticate. It also means to confirm or substantiate by oath or affidavit to swear to the truth.
(c) The combined reading of the words cogent and verifiable reasons in Section 34(2) of the Electoral Act, INEC must be able to ascertain the truth of the facts deposed to from the surrounding circumstance of the case at its disposal.
I make bold to say that based on contemporary issues arising from the last general elections INEC in the exercise of its powers must be given an unfettered discretion to verify and ascertain the truth based on any materials at the disposal or later forwarded by the party so as to ensure that a party fields a candidate of its choice as where it may end up with not having any candidate to contest for the particular elective post will not augur well for our nascent democracy.
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 that political party is very strong.
This takes me to the issue of the indictment of the appellant/applicant which I must add was prominently before the lower court having been pleaded for instance:-
Paragraph 7 of the 151 defendant’s statement of defence reads:-
Paragraph 7:
“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 plaintiffs substitution by his political party” pg 87 of the Record.
Paragraph 1 of the plaintiff’s reply to statement of defence of the 1st defendant paragraph 1 reads:-
“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 the regard.”
The learned trial judge had this to say in her judgment:-
“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 the same indicted list is not before the court and I shall refrain from touching on that exclusive issue.”
The dissatisfaction with the finding of the learned trial judge varies from the appellant to the Respondents.
The appellant attacked the finding as being evasive and further concluded that it is not an issue which a court can take judicial notice of.
The 1st Respondent counsel submitted that parties pleaded the indictment while the lower court should have taken judicial notice of the published list of people indicted following EFCC report and the Report of the Panel set up by the Federal Government they are notorious fact on which the court should have invoked Section 74(1) and (3) of the Evidence Act.
The 2nd respondent queried the procedure adopted by the court under the rules of the Federal High Court and that this has led to a dearth of facts and evidence on which the court could have relied upon to do substantial justice in the matter. The Respondents in this appeal are of the view that the issue of indictment is germane to the case before the court as it is enough to serve as cogent and verifiable reason and satisfy the error committed by the 3rd Respondent in substituting the 2nd Respondent.
It is not disputed and hence of common ground that the issue of the 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. I have evidence in the file by the personal assistance to the National Public Secretary of PDP based on the party’s Constitution which states:-
“That by our party Constitution and guidelines the party is not bound to present you as a candidate even after winning. That the party has a final say as to who should carry its flag in any state:-
That the 2nd defendant/Respondent Is a full-fledged member of the peoples Democratic Party.
Regardless of the pleadings of the parties, and the conflicting and divergent opinion on the issue of the indictment of the appellant it should have called for clarification by further evidence – this was advertently omitted during the period at the lower court.
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:-
(i) For the indictment of the appellant and publishing, 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 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 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
182(1) (i)
No person shall be qualified to the office of governor of a state if:-
(182 (1) (i))
“He has been indicted for embezzlement or fraud by a Judicial. Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government.”
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.
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 publico prono against 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. The distinguishing factors in both cases are:-
(a) In the Ararume’s case the error cannot be related to the facts and information available and at the disposal of INEC to act upon to verify.
(b) In Amaechi’s case the evidence to justify the error was already at the disposal of INEC.
Moreover, Ararume’s case was a test case for the interpretation of section 34 of the Electoral Act. A number of events and occurrences have shown and exposed the complication connected with the section. It is not the intention of lawmakers to force a candidate on the party. The Section 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. No order as to costs.
CROSS-APPEAL
At the hearing of the cross-appeal, the 1st respondent/cross-appellant identified the 1st respondent/cross-appellants brief of argument filed on 10/4/07, adopted and relied on the brief.
In brief, the 1st cross-respondent raised two issues for determination as follows:
(1) Whether the learned trial Judge properly considered the issue of indictment of the plaintiff/appellant by the EFCC and the acceptance of the report by the panel, set-up by the Federal Government of Nigeria having regard to the enabling power of the 1st respondent/appellant to disqualify the plaintiff/applicant from contesting the election and/or authorities and under other legislation as regarded as decided by the court by the Court of Appeal in INEC v. Atiku Abubakar & Ors Appeal No.CA/ABJ/71/2007 (UNREPORTED DECIDED ON 3/4/2007 [now reported as INEC V. A.C. (2007) 6 NWLR (Pt.1029) 142].
Whether the learned trial Judge was right in setting aside any action done pursuant to exhibit D by INEC on grounds of being sub judice.
ISSUE NO. ONE
Whether the learned trial Judge properly considered the issue of indictment of the plaintiff/appellant by the EFCC and the acceptance of the Report by the panel set-up by the Federal Government of Nigeria having regard to the enabling power of the 1st respondent/cross-appellant to disqualify the plaintiff/applicant from contesting the election and/or authorities and under other legislation as regarded as decided by the court by the Court of Appeal in INEC v. Action Congress (2007) 6 NWLR (Pt. 1029) pg 142.
The learned senior counsel for the 1st respondent submitted that the learned trial Judge failed to properly consider the issue of indictment of the plaintiff/appellant and was wrong in his approach to the subject. The learned trial Judge had a duty to take judicial notice of indictment of the plaintiff by the EFCC and its report and the acceptance of the report by the panel set up by the Federal Government. The EFCC report and the report of the panel set up by the Federal Government was submitted and accepted by the Federal Government.
Acceptance of the report by the Federal Government is a constitutional requirement under section 182(1)(i) of the Constitution of the Federal Republic of Nigeria – Section 74(1) (a).
The 1st plaintiff/appellant admitted that a panel was set up by the Federal Government. The consideration and acceptance of the report was on 20/2/07 which preceded the judgment of court. It is trite in our civil jurisprudence that facts admitted need not be proved by virtue of section 75 of the Evidence Act. There was on ground an EFCC Report on indictment of the appellant and the acceptance of the panel set up by the Federal Government. The failure of the court below to take judicial notice of the indictment of the plaintiff/appellant by the EFCC and the panel of the Federal Government.
The court below therefore failed to properly consider the issue of the indictment of the appellant and it has occasioned a miscarriage of justice and mistrial. The 1st respondent/cross-appellant cited cases Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799, (1986) 2 SC pg 385 at pg 329
Ejiniyi v. Adio (1993) 7 NWLR (Pt. 305) pg 320 at pg 329
Chief Okparaeke v. Egbuonu (1941) 7 WACA 53
Ariori v. Elemo (1983) 1 SCNLR 1
ISSUE NO.2
Whether the learned trial Judge was right in setting aside any action done pursuant to exhibit D by INEC on grounds of being subjudice.
The learned senior counsel submitted that the learned trial Judge was wrong in setting aside the letter exh D by INEC on ground of its being subjudice. The plaintiff/appellant was equally wrong in sharing the same view. There was nothing on record to show or canvass that INEC was served with-the relevant court process before it acted on exh. D.
The appellant replied that the issues of indictment and EFCC report are factual situation which a party alleging its existence must prove by positive evidence. They are also facts which the court cannot take judicial notice of. If the EFCC report exists it should have been tendered. Failure to produce and tendered the report of the indictment of the panel set up by the Federal Government offends against section 149(d) of the Evidence Act.
Indictment was never a basis or reason for the purported change or substitution of the name of the appellant.
On issue two, the appellant replied that the learned trial Judge was perfectly in order in his decision on action taken on exh D since same that is the action was made to overreach the matter before the court. The court is urged to discountenance the argument of the 1st respondent and dismiss the cross-appeal.
The appellant replied that the central point of the plaintiff’s case has to do with applicability of Section 34 of the Electoral Act, 2006, which is justiciable see SC/63/07 Ugwu v. Ararume & Ors [now reported in (2007) 12 NWLR (Pt.1048) 3671.
The 2nd respondent/cross-appellant adopted and relied on the brief filed on 10/4/07. Three issues are distilled for the determination of this court as follows:
(1) Whether the plaintiff/appellant’s suit is justifiable.
(2) Whether the order to set aside the actions taken by the 1st defendant pursuant to exhibit D on the ground that the plaintiff’s case was subjudice is justified in the circumstances of this case.
(3) Whether it is not proper to set aside the judgment of the learned trial Judge and enter the order of retrial of this suit.
ISSUE NO. ONE
Whether the plaintiff/appellant’s suit is justifiable.
The 2nd respondent/cross-appellant argued and submitted that the learned trial Judge made an erroneous finding that appellant has a moral right to participate at the elections as he has complied with all the requirements.
As a moral light does not constitute a legal right. The appellant’s claim did not raise any justifiable dispute and the trial court ought not to have exercised jurisdiction to entertain.
ISSUE NO. TWO
Whether the order to set aside the action taken by the defendant pursuant to exhibit D on the ground that the plaintiff’s case was subjudice is justified in the circumstances of this case.
The learned senior counsel for the 2nd respondent/cross-appellant submitted that upon a proper consideration of section 34 of the Electoral Act 2006, the said Section did not operate to render the substitution of the plaintiff which was effected by the 3rd defendant by virtue of exhibit D. The learned trial Judge did not properly exercise his discretion to set aside exh D relying on the decision in the case of Military Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) pg 621. As based on the facts and circumstances of the present case especially as the Electoral Act provided a time schedule which the defendant was bound to follow the order of the learned trial Judge setting aside all actions taken by the 1st respondent under pursuant to exh D merely because such actions were taken while the suit was pending is not justified and constitutes a wrong exercise of judicial discretion.
The appellant replied that no weight should be attached to the foregoing argument.
Issue No. two has been considered in the main appeal and the 1st cross-appellant’s appeal.
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.
I condone the submission of the appellant on the issue and agree with the reasoning and conclusion in the case of Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) page 260 that the principle of waiver and acquiescence is to the effect that where an action was commenced by any irregular procedure and a defendant took steps to participate in the proceedings he cannot be later 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.”
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. No order as to costs.
Other Citations: (2007)LCN/2496(CA)
