Labour Party V. Independent National Electoral Commision (2008)

LawGlobal-Hub Lead Judgment Report

OKORO, J.C.A,

At the Federal High Court sitting in Katsina, the applicant who was the plaintiff therein, by an originating summons submitted for determination the following questions, namely:-

1. Whether by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria 1999, section 32 (7) of the Electoral Act, 2006, and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006 the plaintiff is not entitled to submit to the defendant and the defendant mandated to receive from the plaintiff, the plaintiff’s list of candidates for any bye-election, fresh election or new election into any elective office to be conducted by the defendant in any part of Nigeria, including Adamawa State of Nigeria.
2. Whether by virtue of the Supreme Court decisions in Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367 and Amaechi v. INEC & Ors (2007) 18 NWLR (Pt.1065) 98, it is not the prerogative of the plaintiff to nominate and sponsor candidates of her choice for any forthcoming bye-election, fresh election or new election to be conducted in Nigeria or any part thereof, including Adamawa State.
3. Whether, in the light of the decision of the Court of Appeal in Independent National Electoral Commission & Ors. v. Action Congress & Ors. CA/J/EP/GOV/419/2007 delivered on 26th February, 2008 upholding the nullification of the April 14th, 2007 Governorship election in Adamawa State, and ordering a fresh or bye-election, the plaintiff is entitled to submit a list of candidates for the said fresh, new or bye-election for the office of Governor of Adamawa State of Nigeria as required by section 32(7) of the Electoral Act, 2006.

Four reliefs are sought from the court below as follows:

1. A declaration of this honorable court that by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria, 1999, section 32(7) of the Electoral Act, 2006 and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006, the plaintiff is entitled to submit to the defendant, and the defendant mandated to receive, the plaintiff’s list of candidates for any bye-election, fresh election or new election into any elective office to be conducted by the defendant in any part of Nigeria, including Adamawa State of Nigeria.
2. A declaration of this honorable court that by virtue of the Supreme Court decisions in Ugwu v. Ararume (2007) 12NWLR (Pt.1048) 367, and Amaechi v. INEC & Ors. (2007) 18 NWLR (Pt.1065) 98, it is the prerogative of the plaintiff to nominate and sponsor candidate of her choice for any forthcoming bye-election, fresh election or new election to be conducted in Nigeria or any part thereof including Adamawa State.
3. A declaration of the honorable court that in the light of the decision of the Court of Appeal in Independent National Electoral Commission & Ors. v. Action Congress & Ors. CA/J/EP/GOV/419/2007, delivered on 26th February 2008 upholding the nullification of the April 14th, 2007 governorship election in Adamawa State, and ordering fresh or bye-election, the plaintiff is entitled to submit a list of candidates for the said fresh, new or bye election for the office of the Governor of Adamawa State of Nigeria as required by section 32(7) of the Electoral Act, 2006.
4. An order of the honorable court directing the defendant to receive from the plaintiff her list of candidates for the said bye election, fresh election or new election to any, elective office in Nigeria and in particular, the scheduled bye-election, fresh or new election to the office of governor of Adamawa State of Nigeria, and to allow plaintiff to participate in the said bye-election, fresh election or new election by the nomination and sponsorship of a candidate of her choice.

The respondent filed an 11-Paragraph counter affidavit paragraph 6 of which states:

“6. That the plaintiff is not entitled to nominate any candidate for Adamawa State Governorship Election as ordered by the Court of Appeal.”

By an order of the said Federal High Court dated 12th day of March, 2008, the lower court having granted an application of the plaintiff/applicant, referred three constitutional questions adjudged by him to constitute substantial question of law, for the determination by this court. The three questions are as follows:-

1. Whether having regard to sections 221 and 229 of the Constitution of the Federal Republic of Nigeria, the right of a political party to nominate and sponsor candidates of her choice for an election is limited to general elections, and does not apply to bye-elections, fresh elections or new elections.
2. Whether the fresh election ordered to be held after the nullification of the April 14th, 2007 Governorship Election in Adamawa State and the said decision of the Court of Appeal in Independent National Election Commission and others v. Action Congress and others CA/J/EP/GOV/419/2007 is a general election under the constitution of the Federal Republic of Nigeria, 1999 or a bye-election under section 32(7) of the Electoral Act, 2006.
3. Whether by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria 1999, section 32(7) of the Electoral Act, 2006 and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006, a political party registered in Nigeria is entitled to submit to the Independent National Electoral Commission and the Commission mandated to receive from the political party a list of candidates for any bye-election, fresh election or new election into any elective office to be conducted upon the nullification of a previous election by an Election Tribunal.

This constitutional reference is sequel to section 295(2) of Constitution of the Federal Republic of Nigeria which states:

“295(2)Where any question as to the interpretation or application of this Constitution arises in any proceedings in the Federal High Court or a High Court, and the Court is of opinion that the question involves a substantial question of law, the Court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal, and where any question is referred to in pursuance of this subsection, the Court shall give its decision upon the question and the Court in which the question arose shall dispose of the case in accordance with that decision.”

As can be gleaned from this constitutional provision, the Court of Appeal is duty bound to answer these questions which have been referred by the Federal High Court. This Court has no option in the matter and cannot refer same to the Supreme Court. If it is an examination, it can be said to be a compulsory question. And having given an answer to the question so referred, the Federal High Court or State High Court as the case may be is bound to dispose of the case out of which the question arose in accordance with the answer provided by the Court of Appeal. See Togun v. Oputa (No.1) (2001) 16 NWLR (Pt.740) 577.

Let me point out here that this court is not directly concerned with the reliefs sought before the Federal High Court nor will this court grant or refuse those reliefs. It is not even within our purview to consider same. The reliefs shall be considered, granted, or refused by the court below. That is the import of section 295(2) of the Constitution of the Federal Republic of Nigeria, 1999. Thus, apart from the three constitutional questions thrust upon this court for answers, this court cannot go into the merit or otherwise of the substantive matter before the court below. That being the case, the two issues submitted for determination by the respondent appears to be outside the purview of our mandate.

Therefore the issue,

(1) whether given the facts and circumstances of this case, the court below had jurisdiction to entertain the originating summons; and

(2) whether the court below had jurisdiction to restrain enforcement of the order of a superior court which is, with due respect to the learned senior counsel outside the purview of this exercise.

I shall in the circumstance discountenance the two issues submitted for determination by the learned senior counsel for the respondents. Consequently, the reliefs sought therein which are completely outside the mandate of this court are also discountenanced. See Federal Republic of Nigeria v. Ifegwu (2003) 15NWLR (Pt.842) 113.

It seems to me that the coast is now clear for the three questions to be tackled accordingly.

Question No.1:

It was submitted by the learned senior advocate of Nigeria on behalf of the applicant in his brief that it is the constitutional and statutory right of all political parties registered in Nigeria to nominate and sponsor candidates of their choice in any election in Nigeria. That by sections 221 and 229 of the constitution of the Federal Republic of Nigeria, 1999, only political parties including the applicant can nominate and sponsor candidates in all elections in Nigeria, citing several decided cases, the learned senior court set urged this court to answer the first question in the affirmative.

The learned senior court set for the respondent in his brief principally submitted that no constitutional questions had arisen in the court below, which necessitated a reference to this court. Rather it was for the parties to comply with the decision and order of this court in suit No. CA/J/EP/GOV/419/2007 – Independent National Electoral Commission v. Action Congress (unreported) delivered on 26th February, 2008. Also, that for section 295(2) of the 1999 Constitution to apply, it must be shown that the question of law involves the interpretation or application of the Constitution. That the only question which arose at the Federal High Court concerned the desire of the plaintiff (now applicant) to field a candidate other than the one whose name is listed in exhibit 3 as ordered by this court in the aforementioned case. In the circumstance, the learned silk for the respondent did not see any need for this exercise.

As I had earlier pointed out, section 295(2) of the constitution of the Federal Republic of Nigeria is unequivocal in the provision on what this court should do when a constitutional question is referred to it by the Federal or State High Court. The substantiality of the constitutional question is to be decided by the court below. It is not for me at this stage to begin to rationalize the reason why the questions were referred in the first place. My duty simpliciter is to answer those questions.

Now, section 221 of the constitution of the Federal Republic of Nigeria, 1999 states:

“No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political pat1y or to the election expenses of any candidate at an election.”

Also, section 229 of the said constitution which is all interpretative section provides:

“Political party” includes any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice President, Governor, Deputy Governor or membership of a Legislative House of a Local Government Council.”

The applicant and indeed the court below, seeks to know whether the right of a political party to nominate and sponsor candidates of her choice for an election is limited to a general election which, does not apply to bye-election, fresh election or new elections.

It seems to me that the wordings of sections 221 and 229 of the 1999 Constitution are very clear and unambiguous I need to say here that the clear and unambiguous words of a statute must govern its interpretation and application.

It is a cardinal rule of interpretation that where the language of a statute is clear and explicit the court must give effect to it. See Ogunlaji v. A.-G., Rivers State (1997) 6 NWLR (Pt.508) 209: Togun v. Oputa (No.1) (Supra). See also A.-G., Abia State v. A.-G., Federal, (2005) 12NWLR (Pt.940) 452; Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377.

Section 229 of the Constitution, being itself an interpretative section defines what a political party is and speaks for itself. It does not require any mechanical interpretation. Only associations whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice President, Governor, Deputy Governor or membership of legislative house or of a local government Council is qualified to be called a political party. But that is not all. Such an association must have been registered in accordance with the constitution of the Federal Republic of Nigeria and the Electoral Act. See INEC v. Musa (2002) 17 NWLR (Pt.796) page 412.

Thus by section 78(1) of the Electoral Act, 2006, any political association which complies with the provisions of the Constitution and the Electoral Act for the purpose of registration shall be registered as a political party.

Now the right of a political party to nominate and sponsor candidates in all elections in Nigeria has never been in doubt whether it is a general election, bye-election, new election fresh election or election of any nomenclature, the right of a party to nominate and sponsor candidates has always been unfettered. Even the right to substitute candidate already nominated still resides with the parties in any election subject of course to section 34 of the Electoral Act, 2006.

Section 32 (1) of the Electoral Act, 2006 provides:-

“Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.”

Again, section 32(7) of the same act states as regards a bye -election:

“Every political party shall not later than 14 days before the date appointed for a bye-election by the Commission submit the list of candidates from the party for the bye election.”

A communal reading of the constitutional provisions as regards nomination and sponsorships of candidates in elections shows that only political parties are authorized to nominate and sponsor candidates. Also, no other body is allowed to do this. Secondly, section 32(1) of the Electoral Act relates to the nomination of candidates in a general election, section 32(7) of the act relates to nomination of candidates in a bye-election. This is a preserve of the political parties. The Supreme Court in Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367 at 484 paragraph B held as follows:-

“It is very clear from the above provisions that the right or power to nominate a candidate to be sponsored by a political party remains with the party just as the party still retains the right to change or substitute such candidate.”

This has been the position of the courts ever since and not changed. See Onuoha v. Okafor (1983) 2 SCNLR 244; Ossom v. Ossom (1993) 8 NWLR (pt.314) 678; Bakam v. Abubakar (1991) 6 NWLR (Pt.199) 564; and Dalhatu v. Turaki (2003) 15NWLR (Pt.843) 310. See also the recent case of Amaechi v. INEC (2007) 18NWLR (Pt.1065) 98.

From the foregoings therefore, the answer to question one is the affirmative. And for the avoidance of doubt. I state clearly, that the right of a political party to nominate and sponsor candidates of her choice for an election in Nigeria is not limited to a general election only. The right also inures in a bye,fresh or new elections. I am done with question number one. I now proceed to proffer answer to question No.2.

Question No.2:

The question is as follows:

“Whether the fresh election to be held after the nullification of the April, 14th 2007 Governorship Election in Adamawa State by the said decision of the court of appeal in Independent National Electoral Commission & Ors. v. Action Congress & Ors. CA/J/EP/GOV/419/2007 is a general election under the Constitution of the Federal Republic of Nigeria 1999 or a bye-election under section 32(7) of the Electoral Act 2006.”

It was the submission of the learned senior counsel for the applicant that an election ordered to be held after a general election, and upon the nullification of an earlier election, is a bye – election. That the earlier general election held for the office of Governor of Adamawa State of Nigeria having been nullified by the Court of Appeal in INEC & Ors vs. Action Congress (supra) what was ordered is a bye-election for which section 32(7) of the Electoral Act applies. Unfortunately, the learned senior counsel for the respondent did not proffer any argument as regards the question. Be that as it may, all the terms used are necessary for the determination of this question. A general election is defined in Black’s Law dictionary, 8th Edition as “an election that occurs at a regular interval of time of an election for all seats as contrasted with a bye-election.” It defines a bye election as “an election specially held to fill a vacant post”, section 164 of the Electoral Act, 2006 defines “General Election” as follows:-

“General election means an election held in the Federation at large which may be at all levels and at regular intervals to select officers to serve after the expiration of the full terms of their predecessors.”

See also Ojukwu v. Obasanjo (2004) 12 NWLR. (Pt. 886) 169 at 227 paragraph D – F.

From the definition of the two terms, it is clear that a general election involves an election at regular intervals to fill all the seats available in the entire constituency whereas a bye-election refers to an election to fill a particular vacant seat or position created either by death, resignation or impeachment.

Where a general election has been held and there is a false start, for example, a candidate who ought to have been part of the election was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of a court or tribunal and a re-run or re-start is ordered, it is my humble view that the re-run or re-start refers to that general election Cancelled or nullified, and not a bye-election.

The consequence of this is that all the candidates including the one unlawfully excluded would now get back to the starting line for a fair and free contest.

It does not admit of any other candidate since as it were, the period for nomination and screening of candidates would have elapsed. It is just restoring the parties to the status quo ante belum. See Honorable Mohammed Salisu A. Alwa’u & Anor. v. Abbas M. Yakubu & 2 Ors. CA/K/EP/SHA30/20C (unreported) delivered on 6th November, 2003.

Let me demonstrate this with a common place example. We are familiar with athletes who participate in, say, 100 metre race for examples. They are ordered to the starting point of the race by the umpire. But before the gun is shot or the whistle is blown, there could be a false start maybe due to the mistake of one or more of the runners. The race is cance lled. They are ordered back to the starting line to repeat that same race with all the competitors who took part during the false start. At that stage no new competitor is allowed to take part. Only those who had been screened and had taken part in what usually is called “the heat” and are certified fit for the final race that are allowed in the repeat race.

Now, is the order of the Court of Appeal in suit No. CA/J/EP/GOY/419/2007 in INEC v. Action Congress ordering a new election a general election or a bye-election? The order is contained on page 107 of the record of reference and states:

‘The sixth respondent to the petition, Murtala H. Nyako should vacate the office of Governor of Adamawa State forthwith. The speaker of the State House of Assembly should be sworn in to assume office of governor with immediate effect and should retain the office pending the election and return of a governor at a fresh election to be conducted by the first respondent. All the candidates on exhibit P3 are the only, fit and proper persons to contest the fresh election, the date and period for calling for nominations having elapsed.”

Is this new election a bye -election envisaged by section 32 (7) of the Electoral Act, 2006? Or is it a general election? I hold a firm view that the order does not refer to a bye- election and as such section 32(7) of the Electoral Act does not apply. The election which, took place on 14th April, 2007 had been declared a nullity. The exercise had been voided and it is as if it never took place. See Oduko v. Government of Ebonyi State (2004) 13 NWLR (Pt.891) 487. The election of that date to say the least was a void act with no legal consequence. The reason is that the condition precedent for the holding of the election was, never met i.e. that all the candidates lawfully nominated and sponsored by political parties should be included, given a level playing field and allowed to contest. Since one of the candidates was unlawfully excluded, that election was null and void. It is that general election that the Court of Appeal in INEC v. Action Congress (supra) had ordered a re-run. Certainly, not a bye-election. I hope I have answered question number two but just for emphasis, let it be known that the order of the Court of Appeal in respect of Adamawa State Governorship Election re-run refers to the nullified general election and not a bye-election.

Therefore, section 32(7) of the Electoral Act, 2006, does not apply in the circumstance.

I am now left with the third and last question.

Question No.3:

“Whether by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria, 1999, section 32 (7) of the Electoral Act, 2006 and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006, a political party registered in Nigeria is entitled to submit to the Independent National Electoral Commission and the commission mandated to receive from the political party, a list of candidates for any bye-election, fresh election or new election into any elective office to be conducted upon the nullification of a previous election by an Election Tribunal.”

The above question appears to have been answered while considering question No.2. Where there is a nullification of an election the order of the court will determine the course of the election to follow as no two cases are the same. Where however, there is a bye-election to fill a specific office created by the exit of the occupant of that seat either by death, resignation, recall as in a legislature or impeachment, then section 32(7) of the Electoral Act which requires political parties to submit their list of candidates at least 14 days before the date fixed for the bye-election applies. Let me put it this way. For a nullified general election, only the persons who were candidates in the said election can have a re-run as I had earlier expounded while considering question No.2 except the court sees any reason to order otherwise in order to meet the Justice of the case. See Honorable Mohammed Salisu A. Alwa’u & Anor v. Abbas M. Yakubu & 2 Ors. (supra). But when a bye-election is ordered, section 32(7) of the Electoral Act applies and all political parties are entitled to submit a list of their candidates to the Independent National Electoral Commission not later than 14 days to the date fixed for the election and the commission, since it has no power to disqualify any candidate, is mandated to take the said list from the parties. Making this difference very clear, this court had earlier in Oputeh v. Ishida & 2 Ors. (1993) 3 NWLR (Pt.279) 34 at 58 stated per Uwaifo JCA (as he then was) as follows:-

“The point therefore is that the fact that it is a bye – election does not make it necessarily a contest between the earlier candidates. It is a bye-election simply because it is not a general election. But it is now open to any other person who qualifies to contest … In my respectful view, an order for a “re-run election” couched in suitable terms may meet the Justice of individual situation where there is no invalid nomination.”

It is therefore an abuse of terms to say that a re-run election ordered after the nullification of a general election is a bye-election.

In sum, the answers to the three questions submitted for consideration can be summarized as follows:-

1. With regards to question No.1, the right of a political party to nominate and sponsor candidates of its choice for an election is not limited to general election only but also applies to bye-elections, new election or fresh election.
2. That the fresh election ordered to be held after the nullification of the April 14th, 2007 governorship election in Adamawa State by the decision of the Court of Appeal in Independent National Electoral Commission & Ors. v. Action Congress & Ors. CA/J/EP/GOV/419/2007 is a general election re-run under the constitution of Nigeria and not a bye-election under section 32(7) of the Electoral Act, 2006.
3. That by the combined effect of section 221 of the Constitution of the Federal Republic of Nigeria, 1999, section 32(7) of the Election Act, 2006 and Paragraph 27(3) of the 1st Schedule to the Electoral Act, 2006, a political party registered in Nigeria is entitled to submit to the Independent National Electoral Commission, and the commission mandated to receive from the party the said list for both a general and bye-election. Where however, there is a nullification of a general election and a re-run is ordered, only candidates who were lawfully nominated to contest in the nullified election can contest the re-run election since the date and period for calling for nominations, and screening of candidate had elapsed.

The court below is to dispose of the case in accordance with the answers given by this court to the three questions referred in accordance with section 295(2) of the 1999 Constitution of the Federal Republic of Nigeria.

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Other Citations: (2008)LCN/2710(CA)