Engr. Charles Ugwu & Anor. V. Senator Ifeanyi Ararume & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

On 5th of April, 2007, I dismissed this appeal. I indicated that day that I will give my reasons for the dismissal today. I do so now.

The facts of this case as presented by the Court of Appeal are in some material difference from those presented by Dr. Alex Izinyon, SAN, for the 1st appellant in his brief. The material difference is that Dr. Izinyon has introduced the element of the 1st respondent not winning the primaries. He said that the 1st respondent scored 2,061 votes which was less than the 50% of the total votes of 7,504 cast. Dr. Izinyon would appear not to have remembered this important aspect when he settled the pleadings at pages 345 to 348 of the record.

There is yet another aspect. Dr. Izinyon, in part 2 of his brief, contended that the name of the 1st respondent was submitted to the 2nd respondent in error, which error was later corrected. That, to learned Senior Advocate, was responsible for the substitution of the 1st respondent for the 1st appellant. What qualified the 1st appellant to benefit from the exercise of substitution, counsel did not include in narration of facts. All he narrated was that the 1st respondent’s score was 37.5% which was short of the minimum score of 50%.

Although Dr. Izinyon, in the course of narrating the facts, said that the name of the 1st respondent was sent to the 2nd respondent in error, paragraph 4 of the 2nd and 3rd joint defendants’ statement of defence averred to the contrary:

“In further answer to paragraphs 11, 13, 14, 16, 17, 18, 19 of the statement of claim, the 2nd and 3rd defendants deny that the plaintiff’s name was submitted to the 1st defendant and he is put to the strictest proof thereto.”

The above narration conveys some contradictions. I will not say a bundle because the aggregate of the contradictions will not sum to a bundle. The duty of counsel is to present the case of his client and they, at times, do so with some sentiments and emotions. This court cannot hold such human feelings and idiosyncrasies against counsel. That a counsel should love his client’s case to the level of presenting same with some slant favourable to the client is not a condemnable conduct in so far as there is sincerity in the presentation and not an ambition to overreact the case of the adverse party. Such is the fiduciary professional duty of care counsel owes his client. I have no cause or reason to doubt the sincerity of Dr. Izinyon in this area of narration of the facts. One may be sincere in the position he takes but he could be mistaken in his sincerity at the same time”

I have taken up this for only one reason and it is to know the exact factual position. I must say that the 1st respondent took time and pains to narrate the facts of the case from pages 6 to 9 of the brief. I think he did a good job of the facts. Apart from the tradition of appellate courts taking the narration of facts by the lower courts more seriously than those of counsel in the event of conflict, I am inclined to do just that in the light of the situation in this matter.

I should take the narration of facts by the two courts below. The trial Judge narration was brief. I can easily quote the facts here from page 567 of the record:-

“Certain facts are not in dispute in this suit. These are that the plaintiff’s name was submitted to the 1st defendant vide exhibit F as the 3rd defendant’s candidate for the Imo State Gubernatorial election 2007. This is dated 14th December, 2006. That on the 18th January, 2007, vide exhibit K the 3rd defendant sent to the 1st defendant the name of the 2nd defendant as its Gubernatorial candidate for the same office. This submission of a second name is the root cause of this action.” The above is the version of the facts by the trial Judge. Let me take the version of the Court of Appeal. It is a bit more comprehensive. Again, I persuade myself to quote the facts from page 670 of the record:

“The facts are that the appellant emerged winner at the Governorship primaries conducted by the Peoples Democratic Party for Imo State on the 14th of December 2006. The appellant at the contest scored 2,061 votes as against the 36 votes scored by the 2nd respondent Engineer Charles Ugwu. The name of the appellant was forwarded to INEC by the 3rd respondent as the Governorship candidate sponsored by PDP in compliance with the provisions of section 32(1) and (2) of the 2006 Electoral Act, on the 14th of December 2006 as shown in exhs. F and G. The 3rd respondent on the 19th of January 2007 forwarded the name of the 2nd respondent to the 3rd respondent under a letter dated 18th January 2007 exh. K as the candidate it was sponsoring for Imo State Governorship in April 2007.”

The learned trial Judge after taking the interlocutory matter of jurisdiction, threw out the 1st respondent’s case. I did not see the trial Judge dismissing the suit and so I cannot say that; although the result at the end is the same thing. I should quote the two last paragraphs of the judgment at pages 573 and 574 of the record:

“By the provision of Section 34 of the Electoral Act 2006, I find that a political party has the power to change its nominated candidate for another any time before 60 days to election. In its exercise of the power to change, it need to inform the INEC in writing not in any prescribed form of the change. It will also give INEC cogent reason for the change which INEC should be able to verify. In the instant case, the 3rd defendant submitted the name of the Plaintiff as its Governorship candidate, informed INEC of its change of candidate and gave INEC a reason for the change. It is left for INEC to verify the reason or not. But pursuant to all the above, I will say that the political party is within its powers to so change its candidate and have so done as far as the parties on record are concerned.”

The Court of Appeal did not agree with the learned trial Judge.

That court overturned the judgment of the learned trial Judge and allowed the appeal. At page 687 of the record, Adekeye, JCA, said:

“Moreover that pronouncement is not a judicial or judicious exercise of the discretion of the lower court in the circumstances of the case. I shall not hesitate to conclude that the learned trial Judge failed to consider all the aspects of section 34(1) and (2) of the Electoral Act and same has not met the justice of this case. I hereby allow the appeal. Judgment of the lower court is hereby set aside. No order as to costs.”

The court dismissed the cross-appeal. Dissatisfied, the appellants have come to this court. Briefs were filed and exchanged. The 1st appellant formulated four issues for determination:

“1. Whether the decisions of this Honourable Court in Onuoha v. Okafor (1983) 14 NSCC 494; (1983) 2 SCNLR 244; and Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310 on issues of nomination and sponsorship of candidate by a political party have been overtaken by the provisions of section 34(1)(2) of the Electoral Act, 2006.

2. Whether the learned Justice of the Court of Appeal were right in holding that Section 34 of the Electoral Act, 2006 is justifiable.
3. Whether the learned Justices of the Court of Appeal were right in the interpretation of Section 34(1)(2) of the Electoral Act, 2006.
4. Whether the learned Justices of the Court below were right in holding that exhibits K, L and L1 had no probative value having regard to the admission by consent of the said exhibits by parties at the stage of the proceeding.”

The 2nd appellant formulated the following issues for determination:

“(a) Whether the Court of Appeal was right when it held that the action before the trial Court being one of sponsorship and nomination of a candidate by a political partly was justifiable, i.e. has section 34(1)(2) however interpreted taken the issue of nomination and sponsorship of a candidate outside the Supreme Court decision in:

(a) P C. Onuoha v. R.B.K. Okafor (1983) SCNLR pg. 244

(b) Dalhatu v. Turaki, (2003) 15 NWLR, (Pt. 843) pg.310.

(b) Whether the Court below was right or not in holding that exhibits L, L1 & K had no probative value, when the pieces of evidence above were admitted by consent of parties.

(c) Whether the Court of Appeal as constituted by a three man panel instead of 5 Justices, had jurisdiction to hear and determine the matter before it having regard to fundamental, constitutional and salient legal issues raised in the Appeal.”

The 1st respondent formulated the following issues for determination:

“1(1) Whether, having regard to all relevant laws, documentary evidence before the court and the complaint in the grounds of appeal, it can be said that, the Court below was wrong in reaching a conclusion that, there was non compliance with section 34(2) of the Electoral Act 2006 in the purported substitution of the name of the plaintiff with that of the respondent

(2) Whether steps taken in breach of a Court order and in purporting to substitute the name of the Plaintiff are not null and void

(3) Whether the plaintiff’s case is justifiable.”

Learned counsel for the 1st appellant, Dr. Izinyon, SAN, submitted on issue No.1 that the Court of Appeal was wrong to have held that it was not a domestic affair of the 3rd respondent having scaled a purported nomination and sponsorship and that section 34(1) and (2) of the Electoral Act, 2006 has now become the modern deux ex machina. He cited Onuoha v. Okafor (983) 14 NSCC 494; (1983) 2 SCNLR 244; and Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) 310. He dealt with the decisions in the cases at pages 11 to 13 of the brief. He also applied the principles of the two cases at pages 13 to 14 thereof. He argued that section 34(1) can only become applicable and not a domestic affair of the party when the time allowed has elapsed.

On issue No.2, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that section 34 is justifiable. -28 Nigerian Weekly Law Reports 27 August 2007 (Tobi, J.S.C.) He contended that the section does not confer any right of action on any person and therefore not justifiable. The only legal right of a candidate is to sue his political party for breach of its Constitution and nothing else.

On issue No.3, learned Senior Advocate submitted that the Court of Appeal was wrong in the interpretation of section 34. He contended that the Court of Appeal introduced many extraneous considerations into the statute. Counsel itemized them at pages 26 to 27 of the brief. In construing section 34, learned Senior Advocate invoked the mischief rule and submitted that recourse to the rule can only be applicable where the mischief sought to be removed has actually been removed. The Legislature rather than remedying the antecedents left section 34(1) and (2) as a banana peel that is slippery and slimy, counsel contended. On the rules of interpretation, learned Senior Advocate cited Ogbonna v. Attorney-General of Imo State (1992) 1 NWLR (Pt. 220) 647; IBWA Ltd. v. lmano Ltd. (1988) 7 SCNJ 326 at 335; (1988) 3 NWLR (Pt. 85) 633; Ugu v. Tabi (1997) 7 NWLR (Pt.513) 368; Ibrahim v. Mohammed (2003) FWLR (Pt. 156) 902 at 923; (2003) 6 NWLR (Pt. 817) 615; NBN Ltd. v. Weide & Co. (Nig) Ltd. (1996) 8 NWLR (Pt. 465) 150 at 165; Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1; Kraus Thompson Org. V. NIPSS (2004) 17 NWLR (Pt.901)44 at 60-61; Udoh V. OHMB (1993) 7 NWLR (Pt. 304) 139. Relying on exhibits E, F, K, L and L1, learned counsel submitted that the exhibits satisfied the requirements of section 34(2) of the Electoral Act. He said that it is not the duty of the court to audit the reason for the change and whether it has been verified or not as the party who has made the substitution within the time provided by law is exercising its lawful right unfettered. He cited Onuoha v. Okafor (supra); Dalhatu v. Turaki (supra); Agwuna v. Attorney-General of Federation (1995) 5 NWLR (Pt. 396) 418 at 435; Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1 at 2; Ikpenowor V. Ikojunga (2001) FLWR (Pt. 62) 1960 at 1966 – 1967; LSDPC V. Adeyemi-Bero (2005) 8 NWLR (Pt. 927) 330 at 357 to 358. Citing Green v. Green (1987) 2 NSCC 1115 at 1143; (1987) 3 NWLR (Pt. 61) 480; INEC v. Musa (2002) 17 NWLR (Pt.796) 412; Sodipo v. Lemninkainen (1986) 1 NWLR (Pt.15) 220 at 238: Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136 at 152; Adeniji V. Adeniji (1972) 7 NSCC 187; (1972) 4 SC 10; Itanma v. Akpe-Ime (2000) 12 NWLR (Pt.680) 156; Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22.

Still on section 34(1) and (2), learned Senior Advocate submitted that the section is not mandatory, as there is no procedure for compliance and sanction for non-compliance. By way of analogy, learned Senior Advocate called the attention of the Court to section 21 (8) of the repealed Electoral Act, 2002. He cited Cases on Legislation at page 463; Amokeodo v. IGP (1999) 6 NWLR (Pt. 607) 467 at 480-481; Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179 at 190; Pan Bisbilder (Nig.) Ltd. v. First Bank of (Nig.) Ltd. (2000) FWLR (Pt. 2) 177 at 188; (2000) 1 NWLR (Pt. 642) 684; Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56 at 80 on the directory nature of section 34.

On issue No.4, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that exhibits K, L and L1 had no probative value. He specifically submitted that exhibit K made on 8th January, 2007 in a suit instituted on 17th January, 2007 only against INEC was not made during the pendency of the suit nor made in disobedience of an interim order. He also argued that exhibits L and L1 did not contravene section 91(3) of the Evidence Act and therefore admissible. As the documents were admitted by consent, they are admissible, counsel contended. He cited Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671 at 690; Okulade v. Alade (1976) 1 All NLR (Pt.1) 67; Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78; Anyaebosi v R. T Briscoe Nig. Ltd. (1987) 6 SCNJ 9; (1987) 3 NWLR (Pt. 59) 84.

Taking the issue of ex parte order of interim injunction, learned Senior Advocate pointed out that at the time the Court granted the interim order on 19th January 2007, the 1st appellant and the 3rd respondent were not parties as they only became parties on 6th February, 2007. He relied on Kotoye v. CBN (1989) 2 SCNJ 31; (1989) 31 NWLR (Pt. 98) 419; 7-Up Bottling Co. Ltd. v. Abiola and Sons (Nig.) Ltd. (1995) 3 NWLR (Pt. 383) 257 and 276; Okeke v. Okoli (2000) 1 NWLR (Pt. 642) 641 at 655. Assuming without conceding that the 1st appellant and 3rd respondent were aware of the interim order, they applied timeously for a discharge of the ex parte order of 19th January, 2007. To learned Senior Advocate, there was therefore no longer alive an interim order to be disobeyed. He cited Chief Land Officer v. Alor (1991) 4 NWLR (Pt.187) 617; SAP (Nig.) Ltd. v. CBN (2004) 15 NWLR (Pt. 897) 665 at 688, 689; Ariori v. Elemo (1983) NSCC I at 8; (I983) 1 SCNLR 1; Ogunlayi v. Attorney-General of Rivers State (1997) 6 NWLR (Pt.508) 209.

Counsel urged the Court to examine the content of exhibits L and L1 and come to the conclusion that the exhibits satisfied the requirement of section 34(1) and (2) of the Act. He urged the court to hold that the name of the 1st respondent was submitted by error in exhibit F. He invited the Court to do the arithmetical calculation as the documents are before it, documents which were tendered by the 1st respondent and therefore qualify as admission against interest. Learned Senior Advocate urged the court to allow the appeal. Learned Senior Advocate for the 2nd appellant/3rd respondent, Chief Joe-Kyari Gadzama on issue No.1, referred to section 34(1) and (2) of the Electoral Act, 2006 and section 23 of the repealed Electoral Act, 2002 and submitted that the bottom line of the matter is that political parties have the freedom to substitute any candidate who has been nominated 60 days before the election while giving reasons for same. He said that the basis for the inclusion of the phrase “cogent and verifiable” perhaps may have been to curb the arbitrariness of political parties in the act of substitution. While so conceding, he contended that the reason for the insertion of the phrase is not to remove the freedom and rights of political parties to substitute candidates and vest same in the courts or the independent National Electoral Commission, but rather to entrust in the INEC the duty of ensuring that what the party substituting considers as cogent is satisfactory. He pointed out that section 34(2) of the Act did not specify any criterion for ascertaining whether reason(s) adduced by political parties are cogent or not; and that there is no yardstick for the implementation of the said section because there is no sanction for non-compliance. He also pointed out that there is no specification for redress for a candidate who has been substituted and who claims that his right has been violated. Counsel relied on the mischief rule of interpretation. He cited Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130: SPDC v. Isaiah (1997) 6 NWLR (Pt.508) 236: and Omoijahe v. Umoru (1999) 8 NWLR (Pt.614) 178 at 188.

Learned Senior Advocate submitted that the intention of the law makers is to ensure that the business of substitution of candidates should be left in the hands of political parties and that it is not the business of the court to hold that a reason given by a political pm1y is not cogent. To learned Senior Advocate, if the courts do so, it will amount to judicial law making. He cited Attorney-General of Anambra State v. Attorney-General of the Federation (2005) 9 NWLR (Pt. 931) 572. Citing Onuoha v. Okafor (supra), learned Senior Advocate submitted that section 34 has not taken away the issue of sponsorship and nomination of candidates from political parties. Taking issue No.2, learned Senior Advocate submitted that parties are bound by their admissions. He therefore contended that as exhibits K, L and L1 were admitted by consent of the parties, they are bound by them. Learned Senior Advocate argued that at the time exhibits L and L1 were made, there was no evidence before the court that they were made in contemplation of a suit. Consequently, section 91 of the Evidence Act does not apply, counsel submitted. He said that the exhibits were not caught by the doctrine of lis pendis and there was no disobedience of court order.

On issue No.3, learned Senior Advocate argued that five justices instead of three ought to have sat on the appeal before the Court of Appeal. Although he did not give the reason why the panel should have been so constituted, he cited Skenconsult v. Ukey (1981) 1 SC 6 at 17 and Attorney-General of Lagos State v. Hon Justice Dosunmu (1989) 3 NWLR (Pt.111) 552 at 556 and 557. He urged the court to allow the appeal. Learned Senior Advocate for the 15t respondent, Prince L.O. Fagbemi raised a preliminary objection in respect of grounds 4, 8, 9, 10, 11, 13 and 14 on the ground that being grounds of fact or mixed law and fact, leave of court was necessary. As that leave was not sought, the grounds are incompetent and should be struck out.

He cited Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503.

Taking issues Nos. 1 and 2 together, learned Senior Advocate examined the tenor of section 34 of the Act and submitted that under the canon of interpretation of statute, words of a statute are to be given their natural or ordinary meaning, hence where a word of a statute admits of no ambiguity, literal or natural meaning should be given and preferred. He cited Adah v. NYSC (2001) 1 NWLR (Pt.693) 65 at 79-80.

While conceding that in a literal construction of section 34 of the Act, it is beyond doubt that a political party has the right to change any of its candidates at least 60 days to the election, he argued that where the time to substitute has lapsed, a political partycannot as a matter of course or for the fun of it substitute or replace a candidate whose name had earlier on been submitted and who has by virtue acquired a vested right interest except in case of death. He examined in admirable detail the provision of section 34 from pages 17-24 of his brief. He cited Ezekwesili & Ors. v. Omvuagbu & Ors. (1998) 3 NWLR (Pt.541) 217 at 237; Ojukwu v. Obasanjo (2004) 12 NWLR (Pt.886) 169; Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 702; Lipede v. Sonekan (1995) 1 NWLR (Pt.374) 668 at 691; Co-operative and Commerce Bank Nigeria Ltd. v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556; Kamba v. Bawa (2005) 4 NWLR (Pt.914) 43 at 74-75; UNTHBM v. Nnoli (1994) 8 NWLR (Pt.363) 376; Nigerian Ports Plc v. Osinuga (2001) 7 NWLR (Pt.712) 412 at 430; and Ejilemele v. Opara (1998) 9 NWLR (Pt.567) 587 at 619.

He dealt with the importance of history of legislation, particularly section 34(2) of the Act from pages 23 to 33 of the brief. He cited in support of his arguments, Halsbury’s Law of England, 4th edition, Re Issue Vol. 44(1); Maxwell Oil the Interpretation of Statutes, page 19; Ugu v. Tabi (1997) 7 NWLR (Pt. 513) 368 at 380; CCB (Nig.) Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556; Pan Bisbilder (Nig.) Ltd. v FBN Ltd. (2000) 1 NWLR (Pt. 642) 684 at 693; Ifezue v. Mbadugba (1984) NSCC 314; (1984) 1 SCNLR 427; and Adefulu v. Okuleja (1996) 9 NWLR (Pt. 475) 668 at 693.

Examining the effect of exhibits F, K, L and M, learned Senior Advocate submitted that the Court of Appeal was correct in not giving probative value to them for two reasons, viz: (1) They were made in disobedience of a court order and (2) they were made in anticipation of the litigation thus violating section 91(3) of the Evidence Act. He dealt with exhibit L in greater detail and made this submission at page 38 of the brief:

“Since all concerned know the consequences of writing or taking action to prejudice a pending case, the consequences of writing exhibit L and L1 should be visited on the 2nd and 3rd defendants. The consequences of exhibits F, K, L and M can be upheld and that exhibit F remains the only document by which exhibit K will be judged. Since exhibit K has been unhelpful, exhibit L cannot be put to any beneficial use in favour of the 2nd and 3rd defendants in view of the foregoing submission. Thus exhibit L, having been made to overreach the case before the court should be declared void.”

He cited Kankia v. Maigemu (2003) 6 NWLR (Pt.817) 469 at 517 to 518. On whether the name of the 1st respondent has been lawfully removed or substituted, learned Senior Advocate submitted that the name was wrongly substituted in violation of section 34(2) of the Electoral Act; a provision which is mandatory and must be complied with. He contended that with the acceptance and publication of the name of the 1st respondent as the sponsored candidate of the 3rd respondent, he became vested with a right under the Electoral Act and that right or interest can only be taken away in accordance with the provision of section 34(2) of the Act, as it relates to change of name of a candidate. He cited Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 216 and Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt.9) 734.

Learned Senior Advocate urged the court to ignore exhibits K, L and L1 because they did not meet the requirements of section 34(2). He submitted in particular that as exhibit K did not say that it was changing, substituting or replacing the earlier candidates submitted vide exhibit F, it is a worthless document. On exhibit L, learned Senior Advocate submitted that although it said that the 1st respondent’s name was submitted in error, the nature of the error was not stated. He referred to the finding of the learned trial Judge to the effect that exhibit K was silent as “to what it is” and argued, that the finding, not being challenged, is deemed admitted. He cited Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242 at 282; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298. He also urged the court not to give probative value to exhibits L and L1 because they were made during the pendency of the proceedings in which the 3rd respondent was involved.

On the disobedience of the interim order, Learned Senior Advocate submitted that as exhibits E1 and L1 were made and forwarded to INEC during the pendency of the life span of the order, at least before 15th February 2007, any steps taken before effluxion of time as to the life-span of the court order remains incompetent. Counsel urged the court to hold that exhibits L and L1 have no probative value, having been made during the subsistence of a court order.

On issue No.3, learned Senior Advocate submitted that the case is justifiable as the court has jurisdiction to hear it. He argued that as the decision of Onuoha v. Okafor,. (supra) was predicated on the repealed Electoral Act, the decision is no longer apposite in the present dispensation and it will be wrong to continue to rely on such a case. Judicial authorities must only be cited if the facts are similar, learned Senior Advocate contended. But counsel in the early parts of his brief invited us to overrule Onuoha. I do not know how he can reconcile the two submissions, particularly in the light of his reference to Adegoke Motors (Nig.) Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 265 and 266.

Learned Senior Advocate submitted that the 3rd respondent is bound by its Constitution and guidelines in particular exhibits A and B. He cited sections 221 and 222 of the Constitution which provide for political parties to make their Constitutions and Regulations. Citing paragraph 5 of the amended statement of claim and paragraph 1 (i), (ii) and (iii) of the appellant’s reply to the statement of defence of the 2nd defendant, he submitted that none of the parties denied the fact that Primaries which saw the emergence of 1st respondent were conducted under and in compliance with the Constitution and Electoral Guidelines of the party, exhibits A and B. While conceding that the 3rd respondent can substitute or change a candidate it is sponsoring by virtue of Article 51 of the Electoral Guidelines, such a substitution or change should now comply with section 34(2) of the Electoral Act.

On the submission of learned counsel for the 1st appellant that the 1st respondent did not win 50% of the votes at the primaries as provided for under the 3rd respondent’s Constitution and guidelines, learned Senior Advocate urged the Court to discountenance that submission on the ground that it is incompetent. He argued that the issue of wining primaries or not is an issue coming up for the first time in this court and 1st appellant ought to have obtained the leave of this court to raise the fresh issue. He cited Mia v. State (1986) 2 NWLR (Pt. 24) 581; Orogan v. Soremekun (1988) 5 NWLR (Pt.44) 688. He urged the Court to dismiss the appeal.

Learned Senior Advocate for the 1st respondent in his brief to the 2nd appellant/3rd respondent (Peoples Democratic Party) adopted the brief to or in respect of the 1st appellant, Engineer Charles Ugwu. He submitted in addition that the argument of the 2nd appellant/3rd respondent on the composition of the panel of justices does not arise as no interpretation of any part of the Constitution of the Federal Republic of Nigeria, 1999 was in issue in the Court of Appeal and none was decided. I do not intend to take his arguments on this issue further as learned Senior Advocate for the 2nd appellant/3rd respondent rightly withdrew the issue.

Dr. Izinyon, SAN, for 1st appellant in his reply brief submitted that the hullabaloo in the case by the 1st respondent to overrule the decision in Onuoha v. Okafor (supra) is grossly misconceived in law and a non sequitur. He gave ten reasons in the reply brief why the decision should not be overruled. Although it is elementary law that a reply brief only replies to law, the 1st appellant in paragraph 2.0, 2.1 and 2.2 replied to facts, contending that there is nowhere in all the facts where 1st respondent claimed he won the primaries by scoring 50% of the total votes cast in exhibit E. He cited exhibit B. On whether the claim of the 1st respondent was essentially declaratory, learned Senior Advocate submitted that the claim was not only declaratory but consists of a positive relief of injunction in paragraph 8. He contended that the argument of learned Senior Advocate for the 1st respondent that where a statute provided for a particular mode of doing a thing no other method must be adopted is not applicable to the case on appeal. If the lawmaker intended a sanction to be imposed for non-compliance it would so say expressly. On the purpose and essence of section 34 of the Act, learned Senior Advocate referred to issues Nos. 2 and 3 arising from grounds 1, 2, 3, 5, 6, 7, 8, 10 and 12. Learned Senior Advocate submitted that the 1st respondent did not properly invoke the mischief rule. He gave four reasons for his submission at page 5 of the reply brief. He examined the cases of Pan Bisbilder Ltd. v. First Bank (2000) FWLR (Pt. 2) 177 at 188: (2000) 1 NWLR (Pt. 642) 684; and Ifezue v. Mbadugba (1984) NSCC 14; (1984) 1 SCNLR 427. He urged the court once again to allow the appeal.

Let me quickly deal with the preliminary issues raised by Prince Fagbemi and Chief Gadzama, learned Senior Advocates. They are two. The one raised by Prince Fagbemi was on grounds of appeal involving mixed law and facts which needed leave of Court and that leave was not obtained. The second one by Chief Gadzama was that the panel of the Court of Appeal was not properly constituted. Both counsel applied to withdraw their objections. That is good judgment for which I commend them. The objections are therefore struck out. The fulcrum or crux of this appeal is the interpretation of section 34 of the Electoral Act 2006, specifically section 34(2). Let me read the whole section for completeness.”

(1) A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the election.

(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.

(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.”

The underlying principle in the interpretation of a statute is that the meaning of the statute or legislation must be collected from the plain and unambiguous expressions or words used therein rather than from any notions which may be entertained as to what is just and expedient. See Ahmed v. Kassim (1958) 3 FSC 51; (1958) SCNLR 28; Lawal v. GB Olivant (1972) 3 SC 124. The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the statute as a whole. See Onashile v. Idowu (1961) All NLR 313. This is because it is the duty of the Judge to construe the words of a statute and give those words their appropriate meaning and effect. See Adejumo v. The Military Governor of Lagos State (1972) 3 SC 45. It is certainly not the duty of a Judge to interpret a statute to avoid its consequences. See Aya v. Henshaw (1972) 5 SC 87. The consequences of a statute are those of the Legislatures, not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside his domain of statutory interpretation. He has by that conduct engaged himself in morality which may be against the tenor of the statute and therefore not within his judicial power.

It is only when the literal meaning result in ambiguity or injustice that a may Judge seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. See Mobil Oil (Nig.) Ltd. v. FBIR (1977) 3 SC 53. The above is an exception to the rule rather than the rule. In the construction of a statute, the primary concern of a Judge is the attainment of the intention of the Legislature. If the language used by the Legislature is clear and explicit, the Judge must give effect to it because in such a situation, the words of the statute speak the intention of the Legislature. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377.

The words in a statute are primarily used in their ordinary grammatical meaning or common or popular sense and generally as used as they would have been ordinarily understood. See Garba v. FCSC (1988) 1 NWLR (Pt.71) 449. In construing a statute, the Judge must pay particular attention to the grammar or syntax in or underlying the construction. This does not make the Judge or turn him as a grammarian. By his professional training and his regular application of that training to the construction of statutes he becomes an expert. His expertise coupled with the fact that as a Judge, words are his tools, his professional ability to construe the grammar or syntax in a statute cannot be in doubt.

I now take the mischief rule. This is important because the Court of Appeal examined part of the rule at page 680 of the record:

“Interpretation of statute is an indispensable aspect of adjudication. It is not unusual to be guided or persuaded by historical facts culminating into promulgation of certain laws in their interpretation for the comprehension of their subject matter. This has followed the footsteps of the legislators who in their role as law makers have been guided by history of past events in promulgating laws to connect the mischief meant to be cured by such legislation.”

Reacting to the invocation of the place of history in the mischief rule, Dr. Izinyon, SAN, said on page 28 of his brief:

“It is submitted that recourse to the historical rule can only be applicable where the mischief sought to be removed has actually been removed. The legislature rather than remedying the antecedents left section 34(1)(2) of the Act as a banana peel that is slippery and slimy.”

While I do not want to go into the statement whether section 34(1)(2) was left as a banana peel that is slippery and slimy, I should take for ease of understanding the mischief rule, the history of the rule and its content. The rule was formulated by the Barons of the Exchequer in 1584 in Heydon’s case, 3 Co. Rep. 7 at 75 as follows:

” … that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered. (1st) What was the common law before the making of the Act. (2nd) What was the mischief and defect for which the common law did not provide. (3rd) What remedy the Parliament had resolved and appointed to cure the disease of the commonwealth. (4th) The true reason of the remedy, and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy and to suppress subtle inventions and evasions for continuance of the mischief and prop private commodo, and to add force and life to the cure and remedy, according to the true intention of the makers of the Act, pro bono publico.”

It is clear from the above that to properly ascertain the mischief aimed at by a statute it is sometimes helpful to look into the history of the statute. Therefore, in construing a statutory provision which is ambiguous, preference should be given to the view which would not lead to public mischief. See Ifezue v. Mbadugba (1984) 1 SCNLR 427. One of the most useful guidelines to interpretation is the mischief rule which considers the state of the law before the enactment, the defect which the statute sets out to remedy and/or prevent, the remedy adopted by the Legislature to cure the mischief and the true reason of or behind the remedy. The duty of a Judge therefore is to adopt such interpretation that will enable the suppression of the mischief and to promote the remedy within the intent or intention of the statute. See Savannah Bank of Nigeria Limited v. Ajilo (1989) 1 NWLR (Pt. 97) 305. To arrive at a reasonable construction of a statute, the Judge is entitled, following the Rule in Heydon’s case, to consider how the law stood when the statute was passed, what the mischief was for which the old law did not provide, and the remedy which the new law has provided to cure that mischief. See Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572.

With the above background of the law, I shall take the submissions of counsel and construe section 34(2) of the Electoral Act, 2006. The submissions are three: non justifiablility of the subsection, construction of the word “shall” in the subsection as “may” and whether section 34 of the Act is a replay of section 23 of the Electoral Act of 2002.I will take the above seriatim.

Dr. lzinyon submitted that by the phraseology of section 34 of the Act, it does not confer any right of action on any person. He contended that in order to hold a piece of section of a statute justifiable, this court has had cause to examine the statement and the reliefs. By the claim and reliefs, the issues are not justifiable, learned Senior Advocate submitted. Chief Gadzama submitted that the intention of the law makers is to ensure that the business of substitution of candidates should be left in the hands of political parties and that the Court Shave no business to hold that a reason given by a political party is not cogent. Although Chief Gadzama did not use the expression “not justifiable” as Dr. Izinyon, he says the same thing. Are they right I think not. Draftsmen are not miserly with their language of ousting the jurisdiction of the courts when they so wish or intend. They state their mind or intention clearly in order to avoid any speculation or conjecture about their intention. Let me give some examples from the 1999 Constitution. Section 6(6)(c) and (d), 143(10), 188(10) and 308 clearly provide for ouster clauses. Because ouster clauses are antithetical to the rule of law, courts of law can only surrender to them if they are provided in a statute. And because of their posture of enmity, draftsmen clearly provide for them in a statute and therefore never subject to subtle or clever interpretation. If the National Assembly intended that jurisdiction of the courts should be ousted, in respect of section 34(2) of the Electoral Act, 2006 there should have been a clear ouster clause. In view of the fact that the subsection does not contain ouster clause this court cannot read into the provision such a clause. That will be interfering with the function of the Legislature. While I agree entirely with learned Senior Advocates that the duty is on the Independent National Electoral Commission to interpret what is cogent and verifiable, I do not agree with them that the tennis ball ends at the Court of the INEC. In my humble view, the tennis ball moves from the Court of INEC to the court of law at the instance of an aggrieved party, who is not satisfied-.with the interelation of what is cogent and verifiable. And that takes me to the two expressions. What do they mean First, the word cogent. Counsel for the 1st respondent lifted the definition of cogent from Chambers Dictionary, New Edition (1990) as “powerful: convincing”. He also lifted the definition of the word from Oxford Advanced Learners Dictionary of Current English, 6th edition, as “strongly and clearly expressed in a way that influences what people believe. I agree with the above definitions. Cogent, usually used in the con of reasons or arguments, tends to persuade or to produce belief. It must convince the person it is addressed. The reason argument must be satisfactory to the person it is addressed. Where INEC is convinced or satisfied with the cogency of the reason, section 6 of the Constitution vests in the Judiciary the power to interpret the subsection at the instance of a party aggrieved with the interpretation of INEC. That, in my view, is the basis or essence of the introductory stuff in paragraphs 1.1, 1.2, 1.3 and 1.4 of the 1st respondent’s brief. The role of the Judiciary, very aptly stated in the brief, cannot be taken away in the absence of an ouster clause.

The second word is “verifiable”. Again, counsel for the 1st respondent lifted the meaning of the word from The Oxford Advanced Learner’s Dictionary as “To check that something is true or accurate … To show or confirm”. I accept the definition. The verb “verify”, a variant of the adjective “verifiable” means to make certain that a fact or statement or a state of things as stated is correct or true. It also conveys an element of ”Confirm”. This therefore means that the noun “verification” has good company with the noun confirmation. If an aggrieved party is not satisfied with the exercise of verification by the 2nd respondent, he can seek redress in a court of law.

It is the argument of Dr. Izinyon that section 34(2) is directory and not mandatory. He specifically submitted that the use of the word “shall” in the absence of any sanction cannot be said to be mandatory, especially as to how it should be enforced. Learned Senior Advocate did not call the attention of the Court to any authority to the effect that in the absence of a specific sanction in a section, the word “shall” must be interpreted as directory. I know of no authority too. And when I say this, I do not take what counsel quoted in paragraph 6.30 as authority for his proposal because it is not apt. In the interpretation of statute, the word “shall has various meanings. It may be used as implying futurity or implying a mandate or as contended by Dr. Izinyon, direction or diving permission. The word “shall” when used in a statutory provision imports that a thing must be done and that when the negative phrase “shall not” is used, it implies that something must not be done. It is a form of a command or mandate. See Nigeria LNG Limited v. African Development Insurance Co. Ltd. (1995) 8 NWLR (Pt. 416) 677. Generally, when the word “shall” is used in a statute, it is not permissive. It is mandatory. See Col. Kaliel (Rtd.) v. Alhaji Aliero (1999) 4 NWLR (Pt. 597) 139: The word “shall” in its ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. As contended by Dr. Izinyon, it is sometimes intended to be directory only and in that case it is equivalent to “may” and will be construed as being merely permissive. See Amokeodo v. Inspector-General of Police (1999) 6 NWLR (Pt. 607) 467.

It is my firm view that the word “shall” in section 34(2) is clearly mandatory and peremptory and not directory or permissive. In other words, by the subsection the 3rd respondent must in its application to the 2nd respondent, give cogent and verifiable reasons for the change of candidate. Where the 3rd respondent fails to give any reasons or gives reasons which are not cogent and verifiable, an aggrieved party has the legal right to seek redress in a competent court of law by vi11ue or in virtue of section 6 of the Constitution. This is what the 1st respondent did and I cannot fault him for doing so. Learned Senior Advocate for the 2nd appellant/3rd respondent

called this “judicial law making”. According to counsel, this is so because section 34 of the Act did not expressly provide for the duty of the court to adjudicate on whether a reason advanced by a political party is cogent or not. He cited Attorney-General Adamawa State v. Attorney-General of the Federation (2005) 18 NWLR (Pt. 958) 581. What is the meaning of the expression, the judge making the law or what learned Senior Advocate called judicial law making A Judge is accused of making the law where there is no statute or statutory provision on the issue and this includes for all purposes the Constitution. This is because the only constitutional function of the

Judge is put in the conservative latinism, judicium est quasi juris dictum, meaning judgment, as it were, is a declaration of law. In other words, a law must be in existence before a Judge interprets it. If there is no law on an issue, a Judge has nothing to interpret and if he goes to interpret where there is no law, he will be deemed to have made effort to hold the air in his hands, which is physically impossible. It is in such a situation that a Judge is accused of making the law. In the instant appeal, section 34 is there in the 2006 statute for a Judge to interpret and that is the primary constitutional function of a Judge, a function that cannot be denied him. That will make

nonsense of section 6 of the Constitution. The above apart, I do not think, the case learned Senior Advocate cited is an authority for the legal proposition he made. The case in my humble view, dealt with what this Court called judicial legislation or legislative judgment; which is diametrical to the theory of judicial law making. The difference is that in Attorney-General, Adamawa State this court was concerned with the Legislature interfering with the functions of the Judiciary.I think the court was concerned with the construction of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principles of Derivation) Act, 2004. I should now resort to the mischief rule in the construction of section 34(2) of the Electoral Act, 2006. Following the mischief rule takes me back to history of about four years. The bus stop of the four years is the repealed Electoral Act of 2002. I think counsel referred to section 23 of the repealed Act. The section reads:

“Any political party which wishes to change any of its candidates for any election under this Act may signify its intention in writing to the commission not later than 30 days to the date of Election.”

Learned Senior Advocate for the 2nd appellant/3rd respondent submitted at paragraph 4.02 of his brief that “section 23 of the 2002 Electoral Act is in pari materia with section 34 of the 2006 Act and that the only difference is that the phrase cogent and verifiable reason” was not contained in the 2002 Act”. With respect, I do not agree with him. There are other differences apart from the phrase “cogent and verifiable reason”.

The first major difference is that section 23 is one single section without subsections. Section 34 is one section consisting of three subsections. Second, while section 23 provided for thirty days for political party to change a candidate, section 34(1) provides for sixty days. The third difference is that section 23 did not provide for the situation or position in section 34(2). Fourth, so too the situation or position in section 34(3) which provides for substitution or replacement in the event of death outside the sixty days required in section 34(1). Learned Senior Advocate is with me in the third difference. As a matter of fact, he brought it out clearly in his brief. I know as a matter of fact that both the 2002 and the 2006 Acts were enacted by the National Assembly; one by the National Assembly that existed between 1999 and 2002 and the other by the Current National Assembly. Why did the current National Assembly change the permissive “may” the 2002 Act to the mandatory “shall” in the 2006 Act if the legislative body did not intend any difference This question is relevant in the light of the submission of Dr. lzinyon. I think this is the application of the mischief rule.

Chief Gadzama, SAN, submitted that whether such non inclusion was intended or not, the bottom line is that political parties have the freedom to substitute any candidate who has been nominated not later than sixty days to the election while giving reasons for same. I entirely agree with him, subject however to the rider that the reasons given must be cogent and verifiable by a court of law at the instance of an aggrieved party. I think I have flogged this point over and over.

Chief Gadzama, SAN, correctly, in my view, opined that the basis for the inclusion of the phrase “cogent and verifiable” perhaps may have been to curb the arbitrariness of political parties in the act of substitution. Prince Fagbemi, put it more strongly when he said in paragraph 1.6 of his brief that “by introducing section 34 of the Electoral Act 2006, the Legislature intends to curtail the rascality of the past which led to the decisions of superior courts in cases”. Counsel cited six cases including Onuoha v. Okafor (supra); and Dalhatu v. Turaki (supra). If the intention of section 34(2), to use the correct language of Chief Gadzama, is to curb the arbitrariness of political parties in the act of substitution”, could the intention of the National Assembly in providing for section 34(2) merely to enable the “political parties have the freedom to substitute any candidate who has been nominated not later than 60 days before the election” and for 2nd respondent to be the alpha and omega of deciding on the subsection without the court playing its constitutional role of an arbiter in the event of grievance That is in essence the argument of Chief Gadzama. That is also materially the argument of Dr. Izinyon, although he is not as dogmatic as Chief Gadzama in respect of the freedom of the 3rd respondent to substitute a candidate. Considering the fact that the word freedom in the con means, not being under control of any person or thing, and power or right to do, say or do whatever one wants to, there is every justification to disagree with Chief Gadzama. By the expression, a political partyand indeed the 3rd respondent has the freedom of the air to change a candidate and in so far as it does so within the 60 days limit, the party cannot be questioned. But is that the freedom learned Senior

Advocate has in mind when he added the words “giving reasons for same” in paragraph 4.03. I do not think so. Of course, it can so mean if Chief Gadzama is of the view that the reasons the political party will give must be accepted by the 2nd respondent come rain, come sunshine. In such a situation, the reasons could be merely cosmetic.

Is that the intention of section 34(2) No. The subsection is much more than that. It is not only an affair between a political party and INEC, if a person is aggrieved by the decision of INEC. And that is where the courts come in and that was why this matter was commenced by the 1st respondent in a court of law. Were any reasons given by the 3rd respondent for substituting the name of the 1st respondent for the 1st appellant as required by section 34(2) of the Act I do not think both Dr. Izinyon and Chief Gadzama gave a direct answer to this question. But Prince Fagbemi did. Dr. Izinyon submitted that the name of the 1st respondent was submitted in error. Chief Gadzama, if I remember rightly, in his oral address, gave a few reasons for the substitution. I think he tried the Court on the generic reason of “error” too, like Dr. Izinyon. These are facts which ought to have been set out in the case of the defendants in the trial court. As facts they belong to the defendants and counsel qua advocates cannot supply them even at the trial court not to talk of the Supreme Court. The reasons given by Chief Gadzama in his oral submission should have made so much difference, if not all the difference in this appeal, if they emanated from the head and mouth of the defendants. Assuming that the 3rd respondent committed an error in submitting the name of the 1st respondent, what was the enor An error is a mistake. It is the state or quality of being wrong or mistaken. Although error is a more formal word in usage than mistake, they are synonyms. And so, I ask what was the error or mistake of the 3rd respondent And here, I go to the submission of Dr. Izinyon that the 1st respondent scored 2,061 votes which is 37.5%. In his words: “Little wonder the 3rd respondent reiterated its stand that his name was substituted in error.”

He submitted as follows in paragraph 2.3 of page 5 of his brief:-

“He only scored the highest votes of 2,061 which was short of 50% of the total votes of 7,504 required to win the primaries, as provided for in paragraph 21(n) of exhibit B at page 243 of the record.”

And so the error for the substitution, according to Dr. Izinyon, was the failure of the 1st respondent to score 50% Did the 1st appellant score 50% to deserve the substitution Dr. Izinyon did not extend his argument to the 1st appellant. I expected him to do so. It is possible he forgot to do so. In order to fully appreciate the score at the primaries, I shall reproduce verbatim ad literatim the scores of the candidates in exhibit E.

Peoples Democratic Party

Nominated Gubernatorial Aspirants

S/No. Name Total No of votes scored

1. Sen. Ifeanyi Ararume 2,061
2. Chief Hope Uzodinma 1,649
3. Chief Tony Ezenna 1,388
4. Steve Ahaneku 31
5. Sam Nwandu 6
6. Humphrey Anumudu 51
7. Dr. Mrs. Kema Chikwe 572
8. Jerri Chukwueke 201
9. Festus Odumegwu 282
10. B. C. Nwosu 0
11. J. O. Nzeakor 21
12. N. N. Obasi 12
13. E. U. Ojinere 50
14. Standford Onyirinba 19
15. E. Udeogu 36
16. Charles Ugwu 36
17. Tony Anyanwu 2
18. Eze Enwereji 0
19. Alex Mbakwe 10
20. Ike C. Ibe 973
21. K. K. Nwaagwu 40
22. E. Nwajimba 64

It is clear from exhibit E that the 1st appellant in serial No. 16 who scored 36 votes along with Udeogu was substituted for 1st respondent who scored highest and total votes of 2,061. As it is, the “error” punctured serial Nos. 2, 3, 6, 7, 8, 9, 13, 15, 20, 21 and 22 and inflated serial No. 16. It is this type of thing that makes the Hausaman exclaim, Haba!

For the purpose of section 34(2) of the Act, it does not matter who is substituted for whom, in so far as the reasons for the substitution are cogent and verifiable. If a political party says that they believe a candidate cannot win an election even if he claims to win a primary, what kind of verification can INEC make, Dr. Izinyon asked rhetorically Citing Onuoha v. Okafor (supra); and Dalhatu v. Turaki (supra), learned counsel submitted that it is the political party that best knows which candidate can win its election and not the court. Chief Gadzama made similar submission that the intention of the law makers is to ensure that the business of substitution of candidates should be left in the hands of political parties (and) thus would ensure that credible candidates who could fly the flags of their respective parties to victory, are presented for election. This logic, with respect, clearly faults the underlying factor or need for primaries, particularly in the con of section 34(2) of the Act. It makes nonsense of exhibit B, the Electoral Guidelines for Primary Elections 2006 for the PDP, the 3rd respondent. Why should the 3rd respondent produce a document of 32 pages in the name of the National Chairman and National Secretary of the Party and not follow it Why should Article 17 of the Constitution of the Peoples Democratic Party (exhibit A) provide for primaries, if the party will not follow it This beats me hollow and hands down. Learned Senior Advocate for the 1st appellant quoted profusely from Craies on Legislation on mandatory and directory statutes. I should examine some of the extracts here. He quoted from page 469 of the book:

“The nature of the distinction was discussed by Millett LJ. in Petch v. Guv Inspector of Taxes). The difficulty arises from the common practice of the legislature of stating that something ‘shall’ be done (which means it ‘must’ be done) without stating what are to be consequences it is not done. The court has dealt with the problem by devising a distinction between those requirements which are said to be ‘mandatory’ (or imperative or obligatory) and those which are said to be merely directory (a curious use of the word which in this con is taken as equivalent to permissive). Where a requirement is mandatory, it must be strictly complied with; failure to comply invalidates everything that follows. Where it is merely directory, it should still be complied with, and there may be sanctions for disobedience, but failure to comply does not invalidate what follows.”

I do not think the above supports the case of the 1st appellant. It is clear from the above that whether it is mandatory or directory, the person must comply with the requirement, and sanctions for disobedience will follow. The only difference is that in the case of a directory requirement, failure to comply does not invalidate what follows, as opposed to mandatory requirement where failure to comply invalidates everything that follows. I have held that in the light of the word “shall” in section 34(2) of the Act, the subsection is mandatory and the 3rd respondent was under a legal duty to give cogent and verifiable reasons. Both Dr. Izinyon and Chief Gadzama submitted that as section 34(2) did not contain sanction of penalty for non-compliance, it is unenforceable. Dr. Izinyon said that the subsection is at best a moral admonition. In the case of Petch v. Guvnor cited at page 41 of the 1st appellant’s brief; Millett, L.J., seems to have made a contrary statement. It is that the Legislature may state that something shall be done which means it must be done without stating what are to be the consequences if it is not done. Millett, L.J. did not say that if the Legislature does not provide for the consequences if the thing is not done, then it is unenforceable.

Dr. Izinyon quoted the following from the book at page 42 of the 1st appellant’s brief:

“The principle upon which this question should be decided are well established. The court must attempt to discern the legislative intention. In Liverpool Borough Bank v. Turner (1860) 2 DE G.F. & G.F. & J 502, Lord Campbell L.C. said:

‘No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. ‘”

That is what I have done. I have considered section 23 of the 2002 repealed Act which gave birth to section 34(2) of the 2006 Act I have carefully examined the intention of the National Assembly by providing for section 34(2) and it is my view that the intention is to make the provision mandatory. It is an attempt on the part of the National Assembly to tighten the provision of section 23 of the repealed Act.

Still at page 42 of the brief, Dr. lzinyon quoted as follows:

“I believe, as far as any rule is concerned, you cannot safely go further than in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

I have also done that. Taking section 34(2) in the con of primaries in particular, I have no doubt in my mind that the subsection is not only important but has, an imperative content; considering the general object intended to be secured by the 2006 Act. It is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it likes, without any corresponding exercise of due process on the part of an aggrieved person. I have taken the pains to deal with the quotations relied upon by Dr. Izinyon in Craies on Legislation to make the point that they are not really in favour of his client’s case. So much of the extracts are against the case of his client. Dr. Izinyon and Chief Gadzama submitted several times that lack of sanction in section 34(2) of the Electoral Act makes the subsection non-justifiable. With respect, it is not my understanding that it is the craftsman’s trade to provide for sanction in every section or subsection of a statute. The draftsman can adopt a number of ways. He could provide a sanction in a section. He could do so in a combination or agglomeration of sections (and in most cases, he adopts this method in the concluding section or a part where the statute is arranged in parts). He could also do so in the penultimate section of the statute, leaving the last section to short title and extent of application of the statute. I should not sound final or dogmatic here. So much depends upon the nature of the statute and the draftsman’s style. And considering the fact that style is personal to the owner, there cannot be a dogmatic method. The most important point here is that absence of a particular sanction in a particular section, with the greatest respect, cannot be legal basis for contending that the section is declaratory and not justifiable. If a section of a statute contains the mandatory “shall” and it is so construed by the court, then the consequence of not complying with the provision follows automatically. I do not think

I sound clear. Perhaps I will be clearer by taking section 34(2). The subsection provides that there must be cogent and verifiable reasons for the substitution on the part of the 3rd respondent. This places a burden on the 3rd respondent, not only to provide reasons but such reasons must be cogent and verifiable. If no reasons are given, as in this case; not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied with and therefore interpreted against the 3rd respondent in the way I have done in this judgment. It is as simple as that. It does not need all the jurisprudence of construction of statute. I know of no canon of statutory interpretation which foists on a draftsman a drafting duty to provide for sanction in every section of a statute. That is quite a new one to me and I am not prepared to learn it. If that is what Craies On Legislation is saying, I will never agree with him. No, not even Maxwell, the greatest world authority on Interpretation of statutes. I am not however sure that Craies is as superlative as Dr. Izinyon on the issue. I do not think so.

It is the submission of Dr. Izinyon and Chief Gadzama that the substitution of candidates is an internal affair of the 3rd respondent and therefore not justifiable under section 34(2) of the Act. Let me read Article 2 of the Constitution of the Peoples Democratic Party, the 3rd respondent, to make a point that has occurred to me:

“Subject to the provisions of the Constitution of the Federal Republic of Nigeria, this Constitution shall be supreme and its provisions shall have binding force on all members and organs of the party.”

By Article 2, the supremacy of the 3rd respondent is subject to the supremacy of the Constitution. This is consistent with the provisions of section 1 of the Constitution of the Federal Republic of Nigeria, 1999. Right of access to court is a constitutional right which is guaranteed in the Constitution and no law, including that of a political party, can subtract from or derogate from it or deny any person of it. Such a law will be declared a nullity by virtue of section 1(3) of the Constitution. Fortunately, Article 2 of the Constitution of 3rd respondent is not one of such laws. On the contrary, it vindicates and fortifies section 1(3) of the Constitution, and that is good very good indeed. The 3rd respondent knows clearly the constitutional position. That takes me to the two cases cited by counsel. They are Onuoha v. Okafor (supra) and Dalhatu v. Turaki (supra). While Dr. Izinyon and Chief Gadzama urged this Court to follow the decisions in the two cases, Prince Fagbemi urged the court to overule the decisions. With the greatest respect, none of the submissions is correct. I will neither uphold the decisions of this court nor overrule them in this appeal. It is elementary law that a case is decided on its facts. No case is decided outside its factual milieu. The situation in the two cases is not similar to the situation in this case. While Onuoha was decided on an earlier Electoral Act, Dalhatu was decided on the Electoral Act of 2002. What is involved in this appeal is the Electoral Act, 2006. The provision of section 34(2) of the 2006 Act was not in any of the previous Acts and that makes the whole big difference. Apart from the provision of section 34(2) of the Electoral Act. Article 2 of the Constitution of the 3ru respondent is yet another reason why this court cannot follow its earlier decisions in Onuoha v. Okafor (supra) and Dalhatu v. Turaki (supra). Onuoha involved the political party of the NPP. Dalhatu involved the political party of ANPP. Both cases did not involve the construction of the equivalent of Article 2 or its prototype of the 3rd respondent, Peoples Democratic Party.

In both Onuoha and Dalhatu, this court held that the exercise of the right of a political party to nominate or sponsor a candidate for an election is the domestic affair of the party guided by its Constitution. In tune with Onuoha and Dalhatu, I am guided by Article 2 of the Constitution of the 3rd respondent and the guidance has fortified my position on the justifiablility of section 34(2) of the Electoral Act. If there was a similar provision in Onuoha and Dalhatu, this Court might have come to a different decision. Cases are decided on their peculiar facts in the light of the enabling law. In both Onuoha and Dalhatu there was no section 34(2) of the Electoral Act, 2006. There was also no Article 2 of the constitution of the 3rd respondent. It appears that I am repeating myself. Such a repetition is good for emphasis, and I like it. At the time the two cases were decided, they were correctly decided on the appropriate Electoral Acts. Accordingly, I do not see my way clear in overruling them because there is nothing to overrule. This court could overrule its previous decision which was given wrongly or per incuriam. I will not therefore obey Prince Fagbemi. Similarly, I cannot follow the two cases because they are clearly different from the situation in this appeal. And that is my reason for disobeying Dr, Izinyon and Chief Gadzama. This Court can only follow its previous decision which is decided on generally similar facts. I want to say very loud and clear and without equivocation that this case is completely different from the two cases and there is no legal basis for the submission of the three Senior Advocates. They will be kept in the law reports for application in appropriate cases. The Court of Appeal was Correct when it said at page 680 of the record:

“Is section 34 of the Electoral Act 2006 justifiable or non-justifiable My answer is that it is justifiable. There must be a check on whether the laid down procedure is followed in the process of substitution of a candidate, at the instance of the person adversely affected. INEC and the party who both have roles to play under that section cannot continue to be a judge in their own case. Section 34(2) must be under judicial surveillance.”

Both Dr. Izinyon and Chief Gadzama by their submissions have downgraded section 34(2) to the level of a toothless dog which can only bark but cannot bite because of lack of teeth. With respect, I am not with them. Contrary to their interpretation, the word “shall” in section 34(2) is mandatory and therefore peremptory in content. Mr. Bala, counsel for the 1st respondent in the Court of Appeal, captured the real essence of section 34(2) when he submitted in that court that the subsection injects a new provision fundamentally different, legally and politically. It asks for cogent and verifiable reasons before any substitution can be effected so as to curb the lawlessness that marked the substitution of candidate in the 2003 elections.

Let me take exhibits K, L and L1 in the light of section 91(3) of the Evidence Act. The subsection provides:

“Nothing in this section shall render admissible by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

Learned Senior Advocate for the 1st appellant said that exhibit K was made on 18/1 /07 and the suit was filed on 17/1 /2007 when the 1st appellant and the 3rd respondent were not parties. Exhibit K forwarded to the 2nd respondent the names of 1st appellant and Col. Lambell O. Ihenacho (Rtd.) as governorship candidate and Deputy respectively for Imo State. The defence presented by the 1st appellant, in my view, is neither here nor there. The fact that the 1st appellant and the 3rd respondent were not parties at the material time does not make section 91(3) of the Evidence Act inapplicable. What the subsection provides is that the person must be interested in the suit at the time proceedings were pending or anticipated. It is clear from the reliefs sought by the 1st respondent that the 3rd respondent was interested or had an interest in the proceedings. Considering the fact that exhibit K was made a day after the filing of the suit, the exhibit is caught by the provision of section 91(3) of the Evidence Act as it was made by the National Chairman and National Secretary of the 3rd respondent. I cannot see any interest more than this. See Apena v. Aiyetobi (1989) 1 NWLR (Pt. 95) 85; Gbadamosi v. Kabo Travels Ltd. (2000) 8 NWLR (Pt.668) 243; Kankia v. Maigemu (2003) 6 NWLIR (Pt. 817) 496.

Exhibit L was made on 2/2/07 by the 3rd respondent under the signature of the National Chairman and the National Secretary. It reaffirmed the position in exhibit K, that is the names of the 1st appellant and Col. Lambart C. Iheanacho as the Governorship and Deputy Governorship candidates of 3rd respondent. Exhibit L moved further than exhibit K by indicating that the 1st appellant was substituted for the 1st respondent. Exhibit L is another reconfirmation of the candidature of 1st appellant and Col. Lambart O. Iheanacho. Exhibit L1 moved a bit further than both exhibits K and L by indicating that the 1st respondent’s name was submitted in error. The nature of the error was not indicated in the exhibit. While exhibit L referred to a letter dated 18/2/07, exhibit L1 referred to a letter dated 18/11/07. It should be noted that exhibit L1 cancelled February and wrote “Jan” in long hand. I seem to see confusion in the 18/1/ 07 and 18/2/07 dates. I will not take the issue because it is not important.

What is important is that both exhibits Land L1 were made on the same date of 2/2/07 By the admission of the 1st appellant that the suit was filed on 17/1/07 the two exhibits are clearly caught by section 91 (3) of the Evidence Act, and I so hold. Let me look at the other side of the coin. 1st appellant said at page 56 of his brief that the 3rd respondent and himself became parties on 6/2/07. That is only four days after exhibits Land L1 were made. In either way, section 91(3) is violated. The Court of Appeal, considering the exhibits in the con of section 91(3) of the Evidence Act, said at page 685 of the record:

” By virtue of section 91(3) of the Evidence Act any document made in anticipation of a suit is inadmissible particularly Exhs. Land L1 in this appeal.”

I cannot fault the above statement of the Court of Appeal, The Court is correct.

Learned Senior Advocate cited the case of Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78 to the effect that once a document is admitted by consent, none of the parties will be allowed to recile from it as they are estopped from doing so. I am not quite comfortable with that conclusion because it does not fall in line with previous decisions of this Court. Uwais, JSC (as he then was) made a distinction between class of evidence which is absolutely inadmissible by virtue of some statutory provisions and another class which is made admissible under certain conditions. That was in the case of Anyaebosi v. R. T Briscoe (Nig.) Ltd. (1987) 6 SCNJ 9; (1987) 3 NWLR (Pt. 59) 84, Uwais, JSC rightly, in my view, held that in the former class the evidence cannot be acted upon whether it was admitted by counsel of the parties. In my view, this case clearly comes within the first class and the statutory provision is section 91 (3). After all, section 91 (3) is in absolute terms with the mandatory “shall” and therefore agrees with what Uwais, JSC as he then was said in Anyaebosi. I should thank Dr. Izinyon for citing the authority. That is good advocacy.

Parties by sheer collusion and for their mutually anticipated benefit, cannot give consent to the admission of a document which the Evidence Act clearly provides is inadmissible. As admission of such evidence will clearly run counter or against the provision of the Evidence Act, the court will ignore the so-called consent and rule that the evidence is inadmissible. A general statement as in Ibori cannot, with respect, be correct. The doctrine of estoppel cannot work in favour of parties who mutually give their consent or agree to an illegality. Estoppel, an equitable principle, cannot condone illegality. It rather aids justice and fair play. I think I can stop here. I need not go into the aspect of obedience or disobedience of the order of interim injunction. It was not raised as an issue in any of the briefs and I do not know why Dr. Izinyon took it up in his brief. In sum, this appeal has no merit. It therefore fails and is dismissed. I make the following orders:

(1) I declare that there are no cogent and verifiable reasons for the 2nd and 3rd respondents to change or entertain the change of the name of the 1st respondent as candidate of the 3rd respondent for the April 14, 2007 State Governorship Election in Imo State.

(2) I here grant an order of injunction restraining the 2nd and 3rd respondents from changing or substituting the name of the 1st respondent with that of the 1st appellant or any other person as 3rd respondent’s candidate for the April 14,2007 Imo State Governorship Election. I award N10,000.00 costs to the 1st respondent payable by the 1st appellant.

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SC.63/2007