Engineer Hanafi Aminu Mohammed V. Resident Electoral Commissioner [kaduna State] & Ors (2008)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
The Appellant, a member of the ANPP (the 3rd Respondent), contested and won the party’s primaries as its candidate for the Kaduna State House of Assembly, Ungwan Sanusi, Sabon Gari Constituency, however, by a letter dated 12th February 2007, the party wrote INEC applying to substitute him for the 4th Respondent as its candidate at the election due to be conducted in April 2007. The letter in question is addressed to the Resident Electoral Commissioner, INEC Kaduna State, and it reads –
“With due respect, I write to inform you that the party had sat along with her candidates for various offices in the State and agreed that following candidates are to be substituted accordingly. These are with their full knowledge and consent they are – (Nine names, listed) S/N Present name Substitution Name Constituency
(8) Engr. Hanafi Aminu Muhammad Hon. Nasir Abdullahi Ugwan Sanusi Sir, these are our changes, which is without any ill feelings from any quarters. Hope that will effect (sic) the changes accordingly. “. (Italics mine)
About five weeks later, on the 26th of March 2007, the Appellant filed an Originating Summons at the Federal High Court sitting in Kaduna, wherein he applied for the determination of the following questions –
On being served, the 1st & 2nd Respondents entered Appearance; the 3rd Respondent did not file any papers; and the 4th Respondent filed a Memorandum of Appearance and a 10-paragraph Counter-Affidavit deposed to by one Rabiu Haruna, a Litigation Secretary in the Law Firm of Falalu Bello & Co, wherein it was averred in paragraphs 4 to 6 that-
- It was one Hanafi Aminu and not the Plaintiff that contested the said primaries but his name had to be withdrawn as a candidate when the said Hanafi was adamant in refusing to supply the information required by the 2nd Defendant in Exhibit H1 attached to the originating summons –
- The said Hanafi has also refused to have his Exhibit H1 sworn to before the Commission (sic) for Oaths as required by law.
- When these anomalies were discovered, all the candidates were invited for a meeting and the party and all the contestants mutually agreed that the 4th Defendant should be the candidate of the party.
The Appellant then filed a 4-paragraph Further and Better Affidavit, wherein the same deponent averred as follows in paragraphs 3 (a)-(d):
(a) That the INEC Form 001 previously attached to the Originating Summons and marked as Exhibit H1 was duly sworn to before the Commissioner for Oaths prior to the submission of same to the 1st & 2nd Defendants and what he is now exhibiting before the Court is his own file copy.
(b) That he made the necessary payment to the National Headquarters of the 3rd Defendant before he could get intent form to contest in the sum of N100, 000.00. A copy of the Deposit slip is attached as … Exhibit H5.
(c) That when he submitted Exhibit H5 to the Kaduna State Secretariat of the 3rd Defendant along with payment of additional fifty thousand Naira for party Intent from Kaduna State House of assembly Membership from U/Sanusi Constituency, he was given Exhibit H2 by the party. A copy of the receipt for the payment of N50, 000.00 is also – as Exhibit H6.
(d) That he has satisfied all conditions prescribed by his party ANPP and the INEC for the purpose of contesting for April 2007.
After hearing addresses of counsel, the learned trial Judge, Liman, J., delivered his Judgment on the 19th of 2007, wherein he held as follows –
“- Exhibit H4 is self explanatory; it states the reason for the substitution – consensus of all the candidates. The reason that candidates have agreed to a substitution is to me a cogent reason. The law does not impose the duty on INEC to verify the reason, what it requires is that the cogent reason given must be one which can be verified in case a dispute arises. So once a reason is cogent it must only be verifiable and nothing more. The Plaintiff did not – contend that he challenged the truth or the reason and INEC refused to investigate the substance of his complaint. – I hold that Exhibit H4 is valid in that it disclosed cogent and verifiable reason for the substitution”.
Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing five Grounds of appeal. Briefs of arguments were duly filed and served and in the Appellant’s brief settled by Murtala A. Yusuf, Esq., it was submitted that the following three issues arise for determination –
- Whether having regard to the affidavit evidence placed before the trial Court by all parties thereto, it was right to have held that the candidates including the Appellant have agreed to a substitution and this amounts to a cogent reason as prescribed by Electoral Law 2006?
- Whether having regard to the affidavit evidence adduced by the Appellant before the trial Court, it could be rightly held that the Appellant did not challenge the reason given by the 3rd Respondent to the 1st & 2nd Respondents for his substitution?
- Whether having regard to the date on Exhibit H4, which was 12th February, 2007 the trial Court could be right to have held that the said application was made within the 60 day as prescribed by the Electoral law 2006?
The 1st & 2nd Respondents however submitted in their own brief settled by Garba U. Shehu, Esq., that since the Appellant did not advance any arguments on Ground 5, it is deemed to be abandoned by the Appellant. The Appellant countered in his Reply Brief to the 1st & 2nd Respondents’ Brief that his Issue No. 1 was formulated from Grounds 1 & 5 of the Grounds of Appeal; that he is only entitled to advance and or proffer argument on the issues formulated and not on the Ground of Appeal, citing Kashadadi V. Noma (2000) 15 NWLR (Pt. 692) 807 & Oshatoba V. Olujitan (2000) 5NWLR (Pt.655) 159, and that it is not correct to contend as the Respondents said that he has abandoned his Ground 5. He is right; Issues are formulated from the Grounds of Appeal, and what is before the Court are the issues and not the Grounds, so the issue of advancing arguments on the Grounds of appeal does not arise – see Fagunwa V. Adibi (2004) 17 NWLR (pt 903) 544. In this case, the Appellant complained in his Ground 1 that “the learned trial Judge erred in law when he held that candidate’s helve agreed to a substitution is to me a cogent reason thereby occasioned a miscarriage of justice”.
Ground 5 is the omnibus Ground, which complains that “the whole Judgment is against the weight of affidavit evidence duly filed before the Honourable trial Court”. Obviously, the Appellant’s Issue 1 is formulated from both Grounds, and this is evident from the arguments he proffered in his brief, thus the Respondents’ objection is discountenanced. Nonetheless, the same 1st & 2nd Respondents submitted in their brief that the Issues that arise for determination in this appeal are as follows-
(a) Whether Exhibit H4 contains cogent and verifiable reasons for the substitution of the Appellant with the 4th Respondent
(b) Whether the Appellant had controverted the reason in Exhibit H4 dated 12th February 2007 by the 3rd Respondent for the substitution.
(c) Whether the substitution of the Appellant via Exhibit H4 made on the 12th February 2007 contravenes Section 34 (1) of the Electoral Act 2006.
The 3rd Respondent submitted in its brief settled by J. A. Achimugu, Esq., that the three Issues that call for determination are as follows –
(1) Whether the fact of agreement constitute in the 3rd Respondent’s letter of substitution dated 12/2/07 marked exhibit H4 (sic) contain cogent and verifiable reason for the substitution of the Appellant with the 4th Respondent under Section 34 (2) of the Electoral Act, 2006.
(2) Whether he Appellant had controverted the reason given in Exhibit H4 dated 12/4/07 by the 3rd Respondent for the substitution.
(3) Whether the substitution of the Appellant with the 4th Respondent via Exhibit H4 dated 12/2/07 is in consonance with the provision of Section 34 (1) of the Electoral Act 2006.
This time, it was the Appellant that argued in his Reply to the 3rd Respondent’s Brief that the 3rd Respondent’s Issue (1) was not distilled from Ground 1 because the complaint is that there was no agreement between them to substitute his name with that of the 4th Respondent; that the 3rd Respondent has no right to introduce new facts in its Brief, citing Ndigwe V. Ibekendu (1998) 7 NWLR (Pt.558) 486; and that it did not file any Counter-affidavit to challenge his affidavit evidence or prove the existence of an agreement, citing Section 135 (1) of the Evidence Act, F.I.P.D.C. (Nig.) Ltd. V. E.A.S Ltd. (2006) 6 NWLR (Pt. 975) 1, Baba-Iya V. Sikeli (2006) 3 NWLR(Pt. 968) 508.
It was further argued that the 3rd Respondent did not file a cross-appeal or Respondent’s Notice, so cannot formulate an issue that is diametrically different from the Grounds of Appeal, citing Imoniyane Holdings V. Soneb Ent. Ltd. (2002) 4 NWLR (Pt.758) 618, North-South Pet. Nig. Ltd. V. FGN (2002) 17 NWLR PT.797) 639, and citing Isibor V. State (2002) 3 NWLR (Pt. 754) 250, that the 3rd Respondent’s Issue must correlate with his Ground of Appeal, and since it was not distilled from any of the Grounds of Appeal, the issue and all the legal arguments canvassed in support thereof should be discountenanced. Now, I am in a dilemma as to what the Appellant is trying to get across, the issue makes no sense to me because the 3rd Respondent’s Issue 1, the grammar notwithstanding, hits the nail on the head as to what the issue for determination is in this appeal, and that is whether Exhibit H4 contains a cogent and verifiable reason for the substitution applied for.
The Supreme Court clarified this issue in its recent Judgment delivered on the 27th of June 2008 in the case of Senator Hosea Ehinlanwo V. Chief Olusola Oke & 2 ors SC291/2007 (Unreported), where it was held-
“A political party … has the unfettered right to nominate or sponsor a candidate it likes for any election and the Courts have no jurisdiction to enquire into that issue except in circumstances as decided in the case of Ugwu v. Ararume and the provisions of Section 34 (2) of the Electoral Act 2006. The above exception has to do with substitution of a candidate already nominated and submitted to INEC 120 days to the election and the political party intending the change or substitution of the nominated candidate must give cogent and verifiable reasons before the change or substitution can be effected…. Where no cogent and verifiable reason(s) is/are given by the political party concerned, the substitution or change of candidate cannot be effected and the or original candidate presented to INEC by the political party in accordance with the law remains the candidate…”
Onnoghen, JSC further observed as follows at page 67 of his Judgment-
“For a candidate to be deprived of the sponsorship of the party there must be cogent and verifiable reason for the change or substitution… by the provisions of Section 34 (2) it is the duty of the party seeking the substitution that must not only provide reasons for the change or substitution but must make sure that the reasons are cogent and verifiable otherwise the change or substitution must fail”.
Mohammed, JSC also explained as follows at page 11 of his Judgment-
“… A political party is not bound to submit the name of a candidate who emerges the winner of the primaries conducted by it in the list of candidates who does not meet the qualifications under the law. The 2nd Respondent is therefore not prohibited by the provisions of the Electoral Act 2006 or any decision of this Court from including the name of the Appellant who was not the winner of the primaries conducted by it on the list of its candidates to contest the election conducted on 21st April 2007”. (Italics mine) In a nutshell, the earlier nomination of the Appellant cannot be questioned or looked into by this Court, and any arguments on that score will have to be discountenanced. Be that as it may, the 4th Respondent did not formulate any issues in his brief settled by M. T. Mohammed, Esq., however it was submitted that Exhibit H4, the affidavit evidence and Section 34 of the Electoral Act 2006 are the main materials for a proper and just determination of this appeal, and I agree.
At the end of the day, the issue before this Court is whether Exhibit H4 contained cogent and verifiable reasons for the substitution of the Appellant with the 4th Respondent, which is exactly the question raised in the 3rd Respondent’s Issue 1 that the Appellant took an exception to. The Appellant’s position is that no reason at all was stated in the letter. To this end, he argued in the main brief and his Reply to the 1st & 2nd Respondents’ brief that apart from Exhibit H4, which he placed before the lower Court himself, no other document was produced by any of the Respondents to show that he “voluntarily agreed to withdraw his candidature in the primary election held and won by him under the platform of the 3rd Respondent”, and that it is trite law that he who asserts must prove, citing Section 135 (1) of the Evidence Act & Altine V. Afribank Plc (2000) 15 NWLR (Pt. 689) 181. Before going further, it must be made clear that it will not be necessary in this appeal to look at any documents except Exhibit H4, the issue for determination being whether or not it contains a cogent and verifiable reason and no more. As I stated earlier, no Court of law can enquire into the nomination process of a political party; how a political party arrives at the list of candidates to be submitted to INEC is entirely its internal affairs. It is only where the political party decides to effect a change in the list of candidates already submitted to INEC that the provisions of Section 34 of the Electoral Act, 2006 comes into play, and Section 34 (2) clearly stipulates that the application “shall give cogent and verifiable reasons”. In other words, a Court of law cannot question the nomination process but it can question whether the application to change a candidate gives cogent and verifiable reasons, and so it is only that application for substitution that can looked into and nothing else – see Senator Ehinlanwo V. Chief O. Oke & 2ors (supra), where Mohammed, JSC said-
“Although, the Court below regarded the letter written to the Secretary of the PDP, 2nd Respondent, by the Governor of Ondo State and the State Chairman of the PDP, 2nd Respondent, requesting for the substitution of the Appellant with the 1st Respondent giving reasons for that request, that letter did not accompany the 2nd Respondents’ letter of 5th February 2007 to the 3rd Respondent to supplement the reasons for the substitution. The Court below did not realize that in as much as the Governor’s letter to the 2nd Respondent could be regarded as containing cogent and verifiable reasons for wanting to effect the substitution, that letter was not in existence to be taken into account by the 2nd Respondent when it forwarded the name of 1st Respondent to the 3rd Respondent to substitute the Appellant as candidate on 5th February 2007, the date application for the substitution was written”. (Italics mine)
To all intents and purposes therefore, this appeal will succeed or fail on Exhibit H4 as it stands; it is the letter dated 12th February 2007 that was sent to INEC requesting for the substitution that this Court will consider, and the issue is whether it gives a cogent and verifiable reason in it. Coming to this issue; the Appellant referred this Court to the definitions of the word “consent” in Black’s Law Dictionary, 5th Ed., “agreement” in NBN Ltd. V. Savol W.A. Ltd. (1994) 3 NWLR (PT. 33), and his averments in paragraphs 3 (b), (d) (e) (g) & (h) of his affidavit, that-
(b) The Plaintiff by virtue of his membership of the 3rd Defendant did contest the 3rd Defendant’s party’s primaries … and won.
(d) The Plaintiff was also verified by INEC in Kaduna and confirmed to be okay by the Head of Committee named T. M. Inuwa (The Legal Officer)
(e) Surprisingly in a letter dated 12th February 2007 the 3rd Defendant wrote to the 1st & 2nd Defendants applying to substitute the Plaintiff’s name for that of the 4th defendant in the forthcoming April 2007 election…
(h) The Plaintiff having won his Party’s primaries in his constituency has commenced an intense political campaign…
The Appellant submitted that he consistently maintained in the depositions “that he never agreed at any point in time with the Respondents to yield his will to any proposition to have his name substituted for the 4th Respondent in an election he won the primary”; that the 3rd Respondent did not only fail to enter appearance but also refused to file a counter – affidavit to refute all the above depositions, and it is trite law that when a Defendant refuses, fails or neglects to file a counter affidavit, he will be deemed to have admitted the depositions, citing Inakoju V. Adeleke (2007) 4 NWLR (PT.1025) 423 & Oke V. Aiyedun (1986) 2 NWLR (PT.23) 548; that such unchallenged evidence becomes part of what will lead to a decision in the case, citing NAB Ltd. V. Abdullahi (2000) 6 NWLR (PT.662) 549, and that contrary to the lower Court’s finding that Exhibit H4 is self explanatory on the issue of consent, a proper perusal of the letter shows that there is nothing thereon to indicate that he endorsed the substitution of his name by the 3rd Respondent for the 4th respondent. The 1st & 2nd Respondents however argued that contrary to what he said, a critical look at Exhibit H4 shows that reasons were given for the substitution; that it is the 2nd Respondent who is to determine whether the reason is cogent and verifiable, and since the 2nd Respondent accepted the substitution as contained in Exhibit H4, it is conclusive that the reason given is cogent and verifiable, citing Ugwu V. Ararume (2007) AFWLR (Pt. 377) 807.
The 3rd Respondent submitted that the Appellant’s case was based on two fundamental erroneous assumptions, apparent from paragraph 3 (f) and 3 (i) of his affidavit; that the lower Court found that these dual assumptions upon which the Appellant founded his reliefs were wrong; that Exhibit H4 shows clearly that the agreement between the party and its candidates was the reason; that the Appellant never denied the agreement; that contrary to his submission, there is no denial in the reproduced paragraphs of the Affidavit; and that he did not also deny the averments in paragraph 6 of the 4th Respondent’s Further and Better Affidavit, which is in agreement with the reason given in Exhibit H4. This Court was referred to Ugwu V. Ararume (supra), and urged to hold that the reason in Exhibit H4 is a cogent and verifiable reason. The 4th Respondent argued in the same vein that Exhibit H4 gave the reasons for the application as “agreement of all parties concerned with their consent and knowledge”, and the lower Court was right to so hold; that the Appellant ought to have applied to INEC to challenge the reason, instead he waited till 26th March, 2007 before going to Court; that the paragraphs referred to does not contain anything to show that he contended that the reason given by the 3rd Respondent was false; that he did not challenge the averment in the 4th Respondent’s Counter Affidavit in his Further and Better affidavit, so it is deemed true, citing Gabari V. Ilori (2003) FWLR. (Pt. 17) 901, Att. Gen. Edo State V. Oribhabor (2003) FWLR (Pt.147) 1078, Ajomale V. Yaduat (No.2) (2003) FWLR (Pt.182) 1913 & Owena Bank (Nig) Plc. V. V. JOF Ideal Family Farms Ltd. (2003) FWLR PT. 183) 128, and that the Further and Better Affidavit failed in its function and nature of affidavit in reply, citing Suleiman V. UAC Nig. Plc (2003) FWLR (Pt. 161) 1750.
Now, it is obvious that I am going have to agree with the Respondents, and I do not see why I have to beat about the bush to make that clear. To start with, the Appellant’s position that there is no reason at all in Exhibit H4 makes no sense at all, because there is a reason stated there. It is a different matter if he said that the reason is not cogent and verifiable but to say that there is no reason at all is to deny the obvious. The word “reason” means “that which is thought or alleged as the basis or ground for any opinion, determination, or action” – see Webster’s Comprehensive Dictionary, Encyclopedic Ed., and it is palpably clear on Exhibit H4 that the basis or ground for applying for the substitution is that the 3rd Respondent and its candidates had agreed to it “without any ill feelings from any quarters”, and without any doubts that is a reason. Apparently, the Appellant developed “ill feelings” after the substitution and to register his displeasure he filed the action that culminated in this appeal about 5 weeks later but that is neither here nor there because the issue before us is simply whether the reason is cogent and verifiable. It is also true that there is nowhere in the supporting Affidavit or the Further and Better Affidavit that the Appellant contended that he never agreed to the substitution but that is also of no moment in this appeal. The 3rd Respondent did give a reason for the substitution in Exhibit H4; if it is cogent and verifiable then the substitution is in order, if not, it will be set aside, and that is all there is to it. As Tobi, JSC said in Ugwu V. Ararume (supra) “it does not matter who is substituted for whom, in so far as the reasons for the substitution are cogent and verifiable”. In that case, the reason given for the substitution was that Ararume’s name had been sent in error, but the Supreme Court held that the reason of error did not qualify as a cogent and verifiable reason to effect substitution.
In Ehinlawon V. Oke (supra), where the reason given for the substitution was stated to be “without enough information”, the Supreme Court held-
“…The said reason, if it may be so considered/regarded amounts to no reason at all neither is it cogent and verifiable, as statutorily required. I have to emphasize the point that Section 34 (2) seeks to protect the right of sponsorship of a candidate whose name had been submitted…”
The Supreme Court held in Ugwu V. Ararume (supra) that the expression – “cogent and verifiable reason” in the Electoral Act means a reason self-demonstrating of its truth and which can be checked and found to be true, and the truth in the reason given must be self-evident and without any suggestion of untruth. Muhammad, JSC further stated-
“…The reason(s) to be adduced by a political party to INEC before the Commission can accede to the substitution must be genuine, convincing, compelling and persuading. It should not be flimsy or dubious. It must be clear and unequivocal. Again, should INEC venture to confirm the veracity of these reasons, the political party must be willing and ready to subject such reasons to the scrutiny of INEC for self-satisfaction”. (italics mine)
In this case, the reason given in Exhibit: H4 is that the party had agreed with its candidates that some of them would be substituted with others. The word “agreed” means “brought into or being in harmony; united; settled by consent, bargain or contract – see Webster’s Comprehensive Dictionary, Encyclopedic Ed. A reason given that a person agreed with what is being sought is certainly not in the same class and surely cannot be equated with the reasons of “error” or “without enough information”. Politics is all about compromise; as it is said, there are no permanent friends or permanent enemies in politics, only permanent interests, thus there is nothing strange or extraordinary about a political party agreeing with its candidates to have some of them step aside for others, and in this case, the party added in Exhibit H4 that it was done “without any ill feelings from any quarters”, which is a verifiable fact, and one that would be easy to verify, should INEC venture to confirm its veracity. Clearly, the reason given in Exhibit H4 is a cogent and verifiable reason.
The Appellant’s other grouse is as contended at page 17 of his brief –
“The trial Court in making its finding … held that Exhibit H4 is dated 12h day of February, 2007 and the day of election is fixed for the 14th day of April, 2007 by computation removing the 12th day of February, 2007 and including the 14th day of April, 2007, it would seem that the 12th day of February, will be 60th day to the election. This … could not be right. Because, if the computation and or mathematical calculation actually commenced from 13th February, 2007 to 14th April, 2007 it will result to 61st day to the general election. Therefore, having exceeded one day in contravention of 60 days stipulated under section 34(1) of the electoral Act 2006, the said Exhibit H4 is pursuant to the provisions of section 34 (3) … null and void (Italics mine)
Of course, the Respondents argued, and I quite agree that the substitution was made within the envisaged time. The Appellant certainly misunderstood the interpretation of the phrase “not later than”. As the 3rd Respondent put it – “the Appellant’s submission that the substitution was done 61 days to the election is the most eloquent concession that Exhibit H4 complied with Section 34 (1)” of the said Act. I am indeed baffled that anyone can come up with this line of argument because “not later than” in effect means that no party will be allowed to substitute a candidate 59 or less days to the date of the election, and to argue that an action took place a day after a stipulated period is a clear symptom of what reading a law and standing it upside down is all about. The lower Court is right; Exhibit H4 was made within the stipulated period, and I so hold. The end result is that the appeal lacks merit; and thus fails.
It is dismissed with N30, 000.00 costs to the 4th Respondent.
Other Citations: (2008)LCN/2912(CA)
