Oguche Sunday Oliver V. Kogi State Independent Electoral Commission & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the Ruling of the High Court of Justice sitting at Okpo in Kogi State delivered by Hon. Justice A. O. Salihu.

The Brief fact of this case is that the Appellant and the 3rd Respondent are members of the Peoples Democratic Party (PDP) the 2nd Respondent which is one of the parties that participated in the election in Kogi State and they are both from Olamaboro Ward II.

The Appellant alleges that barely four days to the Election, his name was purportedly substituted with the name of the 3rd Respondent who was earlier disqualified by the 2nd Respondent. Hence on 18/7/2008, he instituted an action at the Lower Court to challenge the said substitution vide the Writ of Summons Statement of Claim and other originating processes; while the case was pending in the Lower Court, the Election was held, the 2nd Respondent won the election and the 1st Respondent declared the 3rd Respondent the elected candidate on the platform of the 2nd Respondent and was Sworn in as Councilor representing Olamaboro II Constituency, Kogi State in disregard of the pending suit

On 8/10/2008, the 1st Respondent filed a Notice of Preliminary Objection challenging the competence of the entire suit and the jurisdiction of the Lower Court to entertain same. Similarly on 4/11/2008, the 2nd and 3rd Respondents filed their Preliminary Objection, The Preliminary Objections were upheld by the Lower Court. The Appellant being dissatisfied with the said Ruling filed this Appeal. Parties have exchanged their Briefs.

In the Appellant’s Brief of Argument dated and filed 4/3/2009, four issues were distilled for the determination of this Appeal and they are as follows:-

“(i) Whether the Supreme Court decision in AMECHI v. INEC and the provisions of the Electoral Act, 2006 are applicable to the instant case (distilled from Ground one).

(ii) Whether the Appellant has the locus standi in commencing the action at the lower Court (distilled from Ground two).

(iii) Whether the purported substitution of the Appellant with the 3rd Respondent by the 2nd Respondent after the name of the Appellant was submitted to the 1st Respondent, is an intra party dispute to be determined by only the Rules and Constitution of the Political Party and not justiciable in the Court (distilled from Grounds three and four).

(iv) Whether the circumstances of this case justifies the invocation of Sections 16 and 27 of the Court of Appeal Act 1990 in this appeal, to receive evidence and grant the Appellant’s relief (distilled from Sections 16 and 27 of the Court of Appeal Act 1990).

The 1st Respondent in its Brief of Argument dated 3/4/2009 and filed on 6/4/09, also distilled four issues for the determination of this Appeal. They are as follows:-

“(i) Whether the facts and principles in the case of Amechi vs. INEC & 2 Ors (2008) 5 NWLR (part 1089) 1 and the provisions of section 34 of Electoral Act 2006 are on all fours with the instant case and therefore applicable (distilled from Ground 1).

(ii) Whether the Appellant who was not the nominated and sponsored candidate of the 2nd Respondent has locus standi to commence this action before the trial Court (distilled from Grounds 2).

(iii) Whether nomination and sponsorship of a candidate is a domestic matter which the party has the absolute power to resolve and therefore not justiciable in the Court of law (distilled from Grounds 3 & 4).

(iv) Whether issue four which is not covered by any ground of Appeal is competent or;

In the alternative: whether the facts and circumstances of this case warrant the invocation of sections 16 and 27 of Court of Appeal Act 1990. ”

The 2nd Respondent adopted the issues as formulated by the 1st Respondent for the determination of this Appeal in its Brief of Argument dated and filed 2/6/2009; whilst the 3rd Respondent in his Brief of Argument dated and filed 27/5/2009 adopted three issues for the determination of this Appeal. They are as follows:-

“1. Whether the issue of nomination and sponsorship of a candidate of a political party in an election is a matter which the Court can entertain.

2. Whether the facts and principles in the case of AMAECHI vs. INEC & 2 ORS (2008) 5 NWLR (PT. 1089) 1 and the provisions of Section 34 of the Electoral Act, 2006 are on all fours with the instant case which is governed by the Kogi State Electoral Law, 2004.
3. Whether this appeal is one in which the Court of Appeal can invoke its powers under Section 16 of the Court of Appeal Act, 1990 to assume full jurisdiction and hear.”

The Appellant filed a Reply to 1st Respondent’s Brief of Argument and it is dated and filed 17/4/2009. The Appellant also filed a Reply to 3rd Respondent’s Brief on 27/5/2009.

Below are the submissions of Counsel on the issues as formulated by the Appellant for the determination of this Appeal. Issue One

“Whether the Supreme Court decision in AMECH1 v. INEC and the provisions of the Electoral Act, 2006 are applicable to the instant case.”

Counsel for the Appellant, James Ocholi SAN submitted that he does not agree with the reasoning of the Lower Court that the 2nd Respondent was under no obligation to give “cogent and verifiable reason” as provided by the Electoral Act, 2006 because the Kogi State Local Government Election Law 2004 does not contain such provisions.

Learned Senior Counsel pointed out that the Supreme Court decision in Amechi v. INEC (2008) 5 NWLR Pt. 1089 Page 227 was not based on Section 34(2) of the Electoral Act 2006 which provides for “cogent and verifiable reasons” alone but on the entire Section 34 of the Act and other applicable principles of law.

He referred the Court to the case of Amechi v. INEC (supra) at Pages 292-293 paragraphs N-B per Oguntade JSC and also to page 296 paragraphs C-D.

He maintained that the Supreme Court in Amechi v. INEC (supra) considered Section 34 (1-3) of the Electoral Act 2006 and not only Section 34(2) of the Act which provides for cogent and verifiable reasons.

James Ocholi SAN submitted that Section 34(1) of the Electoral Act 2006 is similar to Section 23 of the Local Government Election Law, 2004 and that the said Law provides as follows:

“Any political party which wishes to change any of its candidates for any election under this Law may signify its intention in writing to the Commission not later than 5 days to the date of Election. ”

Learned Senior Counsel further submitted that by virtue of the provisions of Section 121 Electoral Act, 2006, the trial Court cannot be right when it held that the provisions of Section 34 (1-3) of the Electoral Act are not applicable to this case.

He maintained that it is no longer in dispute that the National Assembly has the power to make Law as to the procedure for Local Government Election as in the instant case under Concurrent Legislative list and referred the Court to Section 4(4) of the 1999 of the “Federal Republic of Nigeria and also Part II of the Second Schedule, sub-paragraph 11 – 12 of the Constitution.

James Ocholi SAN submitted that based on the above provisions of the Constitution, the relevant ‘part of the Electoral Act 2006 made by the National Assembly becomes applicable to this case.

He maintained that by virtue of Section 121 Electoral Act, the 2nd Respondent must comply with Section 34(2) and (3) of the Electoral Act in the substitution of candidates whose names were submitted to the 1st Respondent as in the instant case. Learned Senior Counsel further submitted that the provision of the Kogi State Local Government Election Law 2004 passed by the Kogi State House of Assembly is subject to the provisions of the Electoral Act, 2006; and that where there is conflict the Act prevails. He referred again to Section 4(5) 1999 Constitution; Part II of the Second Schedule sub-paragraph 12 and also to the case of Attorney-General Lagos State v. Attorney General of the Federation (2003) FWLR Pt. 168 page 909 at 1007 paragraphs B-D.

James Ocholi SAN argued that from the foregoing, the purported substitution of the Appellant with the 3rd Respondent must not only comply with Local Government Election Law 2004, it must also comply with the Electoral Act, 2006 as the said Laws complement each other in their provisions.

He maintained that the implication is that cogent and verifiable reasons must be given by the 2nd Respondent before substituting the name of the Appellant for the 3rd Respondent; but that in the instant case no such reasons were given. Learned Senior Counsel therefore urged the Court to resolve this issue in favour of the Appellant.

In his response, Counsel for the 1st Respondent Joe A. Abrahams submitted that the Supreme Court mainly construed Section 34(1) and (2) of Electoral Act 2006 contrary to the submission of Appellant’s Counsel. He referred the Court to the case of Amechi v. INEC (snpra) at Pages 296-297.

Learned Counsel further submitted that the very relevant provision considered by the Supreme Court was Section 34(2) Electoral Act which spelt out the grounds upon which substitution can be legally made which was the main issue in the case.

He maintained that it was generally accepted that a Party can substitute its candidate by virtue of Section 34(1) but must comply with the grounds provided in Section 34(2).

Joe Abrahams further submitted that Section 34(1) Electoral Act 2006 is similar to Section 23 Local Government Election Law, 2004 to the extent of the power of the political party to substitute its candidate.

He admitted also that the provision of Section 34(1) of Electoral Act, 2006 is similar to Section 23 of the Local Government Law 2004 except for differences in the days and the use of the words “shall” and “may”. And that the two provisions deal with the general principle of the power of substitution of candidates by political party.

Learned Counsel pointed out that in the case of Section 34(1) the days required is 60 days whilst in Section 23(1) 5 days is required and the word “shall” was used in Section 34(1) making it mandatory whilst the word “may” used in Section 23(1) makes it only directory.

He maintained that apart from pointing out the similarity in Section 34(1) of Electoral Act, 2006 and Section 23 of Local Government Election Law 2004, the Appellant’s Counsel said nothing of substance on the significance of the similarity and to that extent no issue has been canvassed for consideration and determination on the comparison of the enactments.

Learned Counsel submitted that Section 34 (1-3) of the Electoral Act 2006 do not apply to the fact and circumstances of the instant case especially sub-section 2 which has no similar provision in the Local Government Election Law 2004.Learned Counsel further submitted that the very relevant provision considered by the Supreme Court was Section 34(2) Electoral Act which spelt out the grounds upon which substitution can be legally made which was the main issue in the case.

He maintained that it was generally accepted that a Party can substitute its candidate by virtue of Section 34(1) but must comply with the grounds provided in Section 34(2).

Joe Abrahams further submitted that Section 34(1) Electoral Act 2006 is similar to Section 23 Local Government Election Law, 2004 to the extent of the power of the political party to substitute its candidate.

He admitted also that the provision of Section 34(1) of Electoral Act, 2006 is similar to Section 23 of the Local Government Law 2004 except for differences in the days and the use of the words “shall” and “may”. And that the two provisions deal with the general principle of the power of substitution of candidates by political party.

Learned Counsel pointed out that in the case of Section 34(1) the days required is 60 days whilst in Section 23(1) 5 days is required and the word “shall” was used in Section 34( I) making it mandatory whilst the word “may” used in Section 23(1) makes it only directory.

He maintained that apart from pointing out the similarity in Section 34(1) of Electoral Act, 2006 and Section 23 of Local Government Election Law 2004, the Appellant’s Counsel said nothing of substance on the significance of the similarity and to that extent no issue has been canvassed for consideration and determination on the comparison of the enactments.

Learned Counsel submitted that Section 34 (1-3) of the Electoral Act 2006 do not apply to the fact and circumstances of the instant case especially sub-section 2 which has no similar provision in the Local Government Election Law 2004. He further submitted that Section 121 of the Electoral Act 2006 should be construed subject to paragraphs 11 and 12 of Part II of the Schedule II of the 1999 Constitution.

Learned Counsel maintained that it is beyond peradventure that the provisions of the Constitution are superior to the provision of any Act of Law including those passed by the National Assembly.

He submitted that also the Electoral Act cannot expand or subtract from the provisions of the 1999 Constitution and referred the Court to the cases of:

Kwara v. Innocent (2009) 1 NWLR Pt. 1121 Page 179 at 218;

ANPP v. Usman (2008) 12 NWLR Pt. 1100 Page 1 at 53.

Joe Abrahams further submitted that paragraphs 11 and 12 of Part II of Schedule II of 1999 Constitution delimit and define the power of the National Assembly to make Laws relating to Local Government Election.

Learned Counsel submitted that the power of the National Assembly to make Laws does not include power to make Laws concerning pre-election matters such as procedure for filing nominations by political parties as provided for in Section 121 of the Electoral Act 2006. He maintained that the provisions of Section 121 of the Electoral Act 2006 do not apply to Local Government Election.

He referred the Court to the case of Kwarra v. Innocent (supra) at page 121 as to what constitutes election and submitted that the National Assembly can only make Laws regulating the procedure of Local Government Election only as it affects and concerns the issues herein highlighted in the case.

Learned Counsel maintained that the power does not include procedure for filing nomination which is a pre-election matter and that Section 121 Electoral Act 2006 is ultra vires and inconsistent with the clear provisions of paragraphs 11 and 12 of Part II of Schedule II of 1999 Constitution and therefore void to the extent of inconsistency.

He further submitted that Section 23 Local Government Electoral Law 2004 is the only applicable Law in respect of the substitution of candidates in a Local Government Council and the said Section does not however make provision for reasons or grounds for substitution as was done in Section 34(2) of Electoral Act 2006.

Learned Counsel also submitted that Section 23 Local Government Electoral Law is not in conflict with Section 34(2) and (3) of Electoral Act 2006 because Section 34(2) and (3) Electoral Act deals with Elections conducted into offices in 1999 Constitution whereas Section 23 Local Government Electoral Law deals with election conducted into offices in the Local Government Councils.

Joe Abrahams maintained that the two Laws provide for different situations and are therefore not in conflict.

He submitted that it is crystal clear that the election in Amechi v. INEC (supra) was a Governorship election which is an election under the 1999 Constitution and therefore covered by the provisions of Section 34(2) and (3) of Electoral Act 2006.

Learned Counsel pointed out that the instant case is a Councillorship election in the Local Government which is covered by the Local Government Electoral Law 2004.

Joe Abrahams therefore submitted that the facts and circumstances in the case of Amechi v. INEC (supra) are distinguishable from the instant case and also that the principles of Law in Amechi’s case which was based on the construction of Section 34(1) and (2) of the Electoral Act 2006 does not apply to the instant case,

He urged the Court to resolve this issue in the negative and dismiss the Appeal on that ground.

In his response on this issue, Counsel for the 2rd Respondent Umoru A. Mohammed submitted that the fact in the instant case is not the same with the fact in Amechi v. INEC (supra).

He argued that the Appellant in this case did not participate in any primary for the election of the 2nd Respondent’s flag bearer for Councillorship election in Olamaboro Ward II Constituency.

Learned Counsel maintained that the unanimous endorsement which Appellant claimed to have had was not a return at the Ward Congress held for the election of Councillorship candidate of Olamaboro Ward II and that the decision of the screening Panel/Committee and Olamaboro Ward executive Committee do not amount to Ward Congress.

Learned Counsel pointed out that the Appellant claimed that his name was submitted by 2nd Respondent to the 1st Respondent as Councillorship candidate for Olamaboro Ward II and that the purported document (Exhibit OSO 2) which was not addressed to the 1st Respondent or any person at all or signed by an identifiable person is at page 18 of the Record of Appeal.

He maintained that it is now a settled Law that any document which has no author or which content has not been shown to have been signed by any existing person who has a name, address, business or occupation as the purported maker is worthless and inadmissible to show that such document was written or signed by that person and referred to Section 100 of the Evidence Act and the cases of Kwara Investment Co. Ltd. v. Garuba (2000) 10 NWLR Pt. 675 Page 25 at 30 para. G; Dantiye v. Kanya (2009) 4 NWLR Pt. 1130 page 13 at 39 para D-H.

Learned Counsel submitted that since the Appellant’s name was not submitted by 2nd Respondent to the 1st Respondent as its candidate, Section 34(1),(2) and (3) of the Electoral Act 2006 and Section 23 of the Kogi State Local Government Law, 2004 are inapplicable to this Appeal. He urged the Court to so hold and dismiss this Appeal.

He maintained that assuming without conceding that the Appellant’s name was submitted by 2nd Respondent to the 1st Respondent for Councillorship election for Olamaboro Ward II Constituency, then Sections 34 and 121 of the Electoral Act 2006 read along with Section 4(4) of the 1999 Constitution and Part II of the Second Schedule, Sub-paragraphs 11 – 12 are not applicable to the domestic processes of nominating candidate by political parties.

Learned Counsel submitted that Sections 34 and 121 of the Electoral Law is not applicable Local Government Elections.

He maintained that the provisions of Section 34 of Electoral Act, 2006 is meant for political parties that have submitted candidate’s names to the “Commission” to mean “Independent National Electoral Commission” (INEC).

Learned Counsel pointed out that the definition did not state that “Commission (SIEC). He maintained that if the legislature had intended that SIEC should be bound by the provisions of Section 34 Electoral Act 2006, it could have included SIEC in its definition of “Commission”.

Learned Counsel argued that the Courts need not take voyage to the Constitution and its Schedules to find out if the Legislature has power to enact Law for Local Government Elections in order to extend the Law to cover Local Government Election when the legislature expressly limits the applicability of the Electoral Act to the “Commission” only. He referred to Section 164 Electoral Act, 2006 and the case of Awuse v. Odili (2004) All FWLR Pt. 212 Page 1611 at 1664.

He maintained that it will be absurd to extend the provisions of Section 34 of Electoral Act to Local Government Elections because that will mean that political parties would have to submit the names of their candidates for the Local Government Elections all over the Country to the “Commission” (INEC) so that if the parties intend to change the candidates, they can comply with the provisions of Section 34 of the Electoral Act; Or the Parties have to submit the names of their candidates to SIEC in accordance with Kogi State Local Government Law 2004 but whenever parties intend to make a change of their candidates, the parties direct the application for substitution of candidates to the “Commission” (INEC) in accordance with the provisions of Section 34 Electoral Act 2006. Learned Counsel submitted that this will surely cause confusion in the whole exercise.

He further submitted that the Court has a duty to avoid such absurdity and confusion in the interpretation of Statutes and urged this Court not to accede to the invitation by the Learned Senior Counsel to the Appellant to extend the provisions of Section 34 Electoral Act, 2006 to Local Government Elections.

In his response on this issue, Counsel for the 3rd Respondent U. O. Onoja submitted that the instant case is a councillorship election governed by the provisions of the Kogi State Local Government Electoral Law, 2004 and that the only provision of the said Law in respect of substitution of candidate is Section 23.

He maintained that the obligation placed on a party wishing to substitute its candidate by this provision is relevant to the instant case and is clearly different from that stated in Section 34 Electoral Act, 2006 applied in Amaechi’s case. Learned Counsel pointed out that the Kogi State Local Government Electoral Law, 2004 has no provision similar to Section 34(2) Electoral Act, 2006 which provides that a political party wishing to change any of its candidate for any election shall give cogent and verifiable reasons.

He contended that the case of Amaechi v. INEC (supra) is not on all fours with the instant case; that both are governed by two distinct Laws and that the obligation placed on a party who intends to substitute its candidate in the instant case is not as cumbersome and mandatory as in Amaechi’s case.

Learned Counsel submitted that Section 121 of the Electoral Act, 2006 relied upon by the Counsel to the Appellant in arguing that the provisions of Section 34(1) – (3) of the Electoral Act, 2006 applies to Local Government Elections is ultra vires the provision of 1999 Constitution and therefore null and void. He maintained that the National Assembly in making the provision went beyond its powers circumscribed in Paragraphs 11 and 12 of Part II of Schedule II to the 1999 Constitution.

U. O. Onoja further submitted that Paragraph 11 thereof provides that the National Assembly may make Laws for the Federation with respect to:-

(a) Registration of voters; and

(b) The procedure regulating elections into Local Government Councils.

He contended that the issue of nomination and substitution of candidates is clearly not within “the procedure regulating elections into Local Government Councils” as they are pre-election issues and also that by Section 34 of the Electoral Act, it is not applicable to Local Government Councils because the Commission referred to in Section is INEC which has nothing whatsoever to do with Local Government elections in Kogi State.

Learned Counsel argued that the issue at stake in this case is who the 2nd Respondent should sponsor in Local Government election and that this issue has only been beclouded by a spurious and unfounded allegation of unlawful substitution of candidate merely to bring this case on all fours with Amaechi’s case and foist jurisdiction on Court.

He submitted that this attempt is most ill-conceived and self deflating even from the case put forward by the Appellant which is as follows:-

1. The Appellant filed his case on 18th July, 2008.
2. The Appellant averred that he was nominated and his name forwarded to the 1st Respondent and that barely four days to the elections, arrangements were being made to substitute the 3rd Respondent for him as 2nd Respondent’s candidate in the election.
3. The Appellant relied on Exhibit OSO2, a document with no author, addressed to no person and made on 26th October, 2007 as evidence of his nomination.
4. The election in issue was scheduled to hold on the 26th day of July, 2008.

U. O. Onoja further submitted that an analysis of these facts will only reveal that the Appellant filed this suit 8 days to the election complained of and yet claimed that arrangements were being made to substitute him barely four days to the election. He contended that these facts were concocted unwittingly and deliberately to bring their case within the provisions of Section 23 of the Local Government Electoral Law, 2004 which makes substitution of candidate impossible as from 5 days to the election.

Learned Counsel contended that assuming any substitution was done as at the time of filing this suit, such substitution will still be valid in the light of Section 23 of the Local Government Electoral Law, 2004.

He further contended that Amaechi’s case is not a blank cheque for Courts to interfere in a party’s nomination procedure and that the Courts can only interfere where in the process of substituting a candidate whose name has been submitted to the Commission, a provision of the relevant Electoral Law or the Constitution is breached.

U.O. Onoja maintained that in the instant case, there was no possibility of such breach even as at the filing the suit (8 days to the election) such as to confer jurisdiction on Court to interfere and that the fact of this case is there was no substitution at all, so the case of Amechi v. INEC (supra) is not relevant to the issue before the lower Court. He urged the Court to so hold.

In his reply to the 1st Respondent on this issue, Counsel to the Appellant James Ocholi SAN submitted that the exrayed by the 1st Respondent in an attempt to distinguish the instant Appeal from Amechi’s case are of no moment. He maintained that what is crucial at this stage is that from the Statement of Claim of the Plaintiff/Appellant which is the only material process for consideration in other to determine jurisdiction, it is clear from paragraphs 9 to 15 and specifically Exhibits OSO 1 line 6 and OSO 2 that the Appellant is the “consensus candidate” of the 2nd Respondent and that whether the 3rd Respondent was validly substituted is a matter within the jurisdiction of the High Court to determine just as was the case of Amaechi v. INEC (supra).

Learned Senior Counsel further submitted that the argument contained in paragraphs 4.13 to 4. 18 of his Brief is at best self defeating and he urged the Court to overrule the futile attempt made by the 1st Respondent to wriggle out from the binding effect of Section 121 of the Electoral Act, 2006 which is an Act of the National Assembly.

He maintained that the provisions of paragraph 12 of Schedule II to the 1999 Constitution quoted by the 1st Respondent at page 8 paragraph 4.13 of her Brief does not vest the House of Assembly of Kogi State with powers to make law regulating election to Local Government Councils to conflict with any law made in that regard by the National Assembly, rather it recognizes the superiority of the Electoral Act, 2006 and only permits a State House of Assembly to add but never to conflict with any provision of the Electoral Act.

James Ocholi SAN urged the Court to hold that if there are inconsistencies found in Kogi State Electoral Law with the Electoral Act, 2006, the Kogi Law is void to the extent of its inconsistencies and not otherwise.

He maintained that Section 121 of Electoral Act, 2006 is binding on the Respondents and ought to be strictly followed by the trial Court and that such compliance will naturally bring this case within the purview of Section 34 (1-3) of the Electoral Act, 2006.

Learned Senior Counsel submitted that if the trial Court had averted its mind to this settled state of law, its decision would have been clearly different. James Ocholi SAN also replied the 3rd Respondent on this issue and submitted that the 3rd Respondent failed to avert his mind to the question of jurisdiction that is called upon for resolution but drifted into arguing the merit of the case and concluded as follows:-

“We dare say that these facts were concocted unwittingly and deliberately to bring their case within the provisions of Section 23 of the Local Government Electoral Law, 2004 which makes substitution of candidate impossible as from 5 days to the election.

We contend humbly that assuming any substitution was done as at the time of filing this suit, such a substitution will still be valid, in the light of Section 23 of the Local Government Electoral Law, 2004.”

He maintained that the above quotation is purely touching on the merit of the substantive suit which the High Court has been called upon to determine whether the substitution is valid.

Learned Senior Counsel further submitted that the 3rd Respondent who challenged the jurisdiction of the Court at on breadth has called on the Court to hold that the substitution is valid even when the jurisdictional issue raised is being contended in this Appeal. He maintained that if anything the submission of the 3rd Respondent is at best an admission or concession that the trial High Court and indeed this Court have jurisdiction to determine whether the substitution of the 3rd Respondent is valid.

Issue Two

“Whether the Appellant has the locus standi in commencing the action at the lower Court. ”

Counsel for the Appellant, James Ocholi SAN referred the Court to the case of Attorney General of the Federation v. Attorney General of Abia State & ors. (2001) 11 NWLR Pt. 723 page 689 at 772 on the definition of the concept “Locus Standi”.

Learned Senior Counsel argued that from the Statement of Claim filed before the lower Court a s shown on pages 4 – 8 of the Records, the Appellant is a registered member of the 2nd Respondent and also as shown in paragraphs 9 – 12 of the said Statement of Claim, the Appellant was the only consensus candidate of the 2nd Respondent for the election in dispute.

He submitted that the said nomination conferred a right on the Appellant to contest election for Councillorship position for Olamaboro II constituency of Kogi State, that as the consensus candidate of the 2nd Respondent, the 1st Respondent issued the Appellant a nomination form preparatory for election as the flag bearer of the 2nd Respondent and that the Appellant then embarked on campaigns on the platform of the 2nd Respondent canvassing for votes.

James Ocholi SAN maintained that in the turn of events, those votes which the Appellant canvassed for were turned in for the Party (2nd Respondent) only to have the 3rd Respondent benefit unjustly from the labour of the Appellant.

He submitted that the said right to be elected on the PDP platform was removed in violation of the provisions of the Law and that the Appellant has the capacity to invite the Court to determine whether his substitution was in accordance with the said Laws.

Learned Senior Counsel further submitted that the Article or Constitution of the 2nd Respondent cannot remove the right of access to Court by the Appellant, being a Constitutional right. He therefore urged the Court to resolve this issue in favour of the Appellant.

In his response, Joe A. Abrahams Counsel for the 1st Respondent stated that the law is well settled on the definition of locus standi and referred the Court to the following case:

Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) SC 112.

ANPP V. R.O.A.S.S of (2005) 6 NWLR Pt. 920 page 140 at 180;

Attorney General of the Federation y. Attorney- General of Abia State & Ors

11 NWLR Pt. 723 page 689 at 772-773;

Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR 483;

Lawan Adesokan &ors v. Sunday Adetunji & Ors (1994) 6 SCNJ 123.

He submitted that a summary of the definition is that for a person to have locus standi or legal capacity to commence an action in Court he must show sufficient legal right in the subject matter which is being or has been threatened or violated. Learned Counsel further submitted that in consideration of whether a person has locus standi or not, the peculiar circumstances of the case must be taken into consideration.

He pointed out that the subject matter of this suit is the purported substitution of the Appellant after his name was submitted to the 1st Respondent and that if that was the situation (which has been disputed), the Appellant would definitely have the locus to ventilate his grievances; but the peculiar facts of this case do not support his claim.

Learned Counsel maintained that from the Records, Exhibits A, B, C, D, E, F and the Statement of Defence and the Statements on Oath of the 1st and 3rd Respondents clearly show and demonstrate that the Appellant’s name was never forwarded by the 2nd Respondent to the 1st Respondent as the Councillorship candidate for Olamaboro Ward II. Rather, it was the 3rd Respondent that was nominated and sponsored by the 2nd Respondent and his name was forwarded to the 1st Respondent as the consensus candidate.

Joe Abrahams submitted that the Appellant who was not nominated and sponsored as the candidate for the election cannot be heard to complain about substitution and that the issue of substitution does not arise in the instant case.

He further submitted that the Appellant has not shown that his legal right is threatened and therefore lacks the capacity to commence any action on the subject matter.

Learned Counsel maintained that the trial Court was right in striking out the suit for lack of locus in line with the principles of law in Lawani Adesokan & Ors v. Sunday Adetunji & ors (supra) that decided that where a party has no locus standi, it results in lack of jurisdiction and the Court should strike out the suit. He urged the Court to resolve this issue in favour of the Respondents.

In his response to this issue, Counsel for the 2nd Respondent Umoru A. Mohammed stated that the maxim “locus standi” means the legal capacity to commence an action in a Court of law or Tribunal. He maintained that in compliance with the High Court (Civil Proceedings) Rules, the Appellant attached copies of all the documents he intends to rely upon to prove his averments in the Statement of Claim to his Witness Statement on Oath as exhibits and that his claim is to the effect that he was the unanimous candidate of the 2nd Respondent for Olamaboro Ward II constituency for councillorship election and his name was submitted to the 1st Respondent by the 2nd Respondent who subsequently substituted his name with that of the 3rd Respondent.

Learned Counsel pointed out that the Appellant stated his legal capacity to institute this suit against the Respondents at paragraph 1 of the Statement of Claim and referred the Court to page 4 of the Record. He maintained that tbe Appellant’s capacity as averred in paragraph 1 of the Statement of Claim cannot confer locus standi to institute this suit because the question of who the 2nd Respondent should sponsor for Olamaboro Ward II Councillorship election is a political question which is not justiciable in Court and referred the Court to the case of Dalhatu v. Turaki (2003) 15 NWLR Pt. 843 page 310. Umom A. Mohammed posited that the Appellants averred at paragraph 13 and 14 of the Statement of Claim at page 6 of the Record thus:-

“13. Following the conclusion of the screening of all candidates for the Local Government Election and the ratification of same by the 2nd Defendant’s State EXCO, the State Secretary of the party wrote a letter which it forwarded to the 1st Defendant through which it submitted a list of the party’s candidate cleared for Chairmanship/Councillorship Election in Olamaboro Local Government Council. The said document is hereby pleaded and shall be relied upon at the trial.

14. The claimant avers that in the said list, his name was forwarded to the 1st defendant as the candidate of the party for Olamaboro Ward I1 constituency.”

Learned Counsel submitted that the document pleaded at paragraph 13 of the Statement of Claim reproduced above is at page 18 of the Record and the document is worthless and inadmissible because it was signed by an unidentified or unknown person and it was not addressed to the 1st Respondent. He referred the Court to Section 100 of the Evidence Act and to the case of Kwara Investment Co. Ltd. v. Garuba (supra); Dantiye v. Kanya (supra).

Umoru A. Mohammed further submitted that a worthless and inadmissible document such as Exhibit OSO 2 on page 18 of the Record cannot confer locus standi on any person including the Appellant and he urged the Court to so hold.

In his Reply to the I” Respondent’s submission on this issue, James Ocholi SAN submitted that the locus to sue is not ascertained from the Statement of Defence but from the Statement of Claim. He maintained that the entire argument of the 1st Respondent has failed to consider the issue of locus from the content of the Statement of Claim rather they projected their argument relying on their defence.

He stressed that this fundamental error that has misled the 1st Respondent and referred the Court to paragraphs 5.2 of the 1st Respondent’s Brief which is a classic example of the error in their argument.

ISSUE THREE

“Whether the purported substitution of the Appellant with the 3rd Respondent by the 2nd Respondent after the name of the Appellant was submitted to the 1st Respondent, is an intra party dispute to be determined by only the Rules and Constitution of the Political Party and not justiciable in the Court”

Counsel for the Appellant, James Ocholi SAN submitted that the issue of substitution is an issue of law and not an intra-party matter. He maintained that the Electoral Act 2006 and the Kogi State Local Government Election Law 2004 applicable to this case provides procedures for substitution of the Appellant whose name was submitted to the 1st Respondent by the 2nd Respondent and the said procedure must be complied with. He referred the Court to the cases of Amechi v. INEC (supra) at page 311;

Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 pages 365 at 486-487.

Learned Senior Counsel further submitted that in the instant case the Laws of the land which must be complied with are Section 23 of the Kogi State Local Government Law 2004, Sections 34 (1- 3) and 121 of the Electoral Act 2006, and the provisions of the 1999 Constitution of the Federal Republic of Nigeria earlier cited under issue two. He referred the Court to the case of Chime v. Onyia (2009) 2 NWLR Pt. 1124 page 1 at 72-73.

James Ocholi SAN maintained that the instant case is a pre-election matter filed several weeks before the election in dispute but that despite being aware of the action before the lower Court the 1st Respondent went ahead with the election just as !NEC did in Amechi’s case.

He maintained that the summary of the facts of this case is that the Appellant bought the nomination form of the 2nd Respondent, was cleared by the 2nd Respondent’s screening committee and thereafter the 2nd Respondent set up a Councillorship screening committee to review the decision of the first committee.

Learned Senior Counsel contended that the said second committee came up with the first report and the Appellant was picked as the party’s consensus candidate for councillorship position in Olamaboro II constituency of Kogi State and on 19th May 2008, the 2″ Respondent EXCO in Olamaboro II ward of Olamaboro Local Government Area endorsed the Appellant as their consensus candidate.

He maintained that the Appellant was issued nomination form by the 1st Respondent which he filed and submitted and that the said form with the stamp of the 1st Respondent’s Permanent Secretary is shown on page 21 of the Record.

Learned Senior Counsel pointed out that barely four days to the election, the Appellant was purportedly substituted with the 3rd Respondent and referred the Court to pages 4-6 and 14-23 of the Record.

He submitted that the submission of the name of the Appellant to the 1st Respondent by the 2nd Respondent took the matter outside the sphere of the Political Party i.e. PDP and therefore a matter of law which the Court has the jurisdiction to determine.

Learned Senior Counsel further submitted that this Court has the power to determine whether the purported substitution of the Appellant with the 3rd Respondent complied with the law and he urged this Court to resolve this issue in favour of the Appellant.

In his response on this issue, Joe Abrahams Counsel for the 1st Respondent submitted that the decision of a Political Party as to who amongst its members in particular constituency it will nominate and sponsor to contest for a particular office cannot be challenged through any process in any Court of law even if the Political Party violates its own internal rules in arriving at the decision concerning the members it decides to sponsor. He referred the Court to the cases of

Onuoha v. Okafor & Ors. (1993) NSCC 494;

Belouwu v. Chinyelu (1991) 9 NWLR Pt. 263 page 24;

Abana v. Obi (2004) 10 NWLR Pt.319;

Jang v. INEC (2004) 12 NWLR Pt. 886 page 46 at 83;

Adebusoye v. Oduyoya (2004) NWLR Pt. 854 page 406;

Dalhatu v. Turaki (2003) 15 NWLR Pt. 843 page 310.

He further submitted that from the above cases the issue of nomination and sponsorship of candidates for election is a political and an internal issue of the party that will not require the intervention of the Court to resolve as it is within the absolute province of the party to nominate and sponsor any of its members to any office; and that even where there are breaches by the party of its own rules, the party is the only competent arbiter to resolve same. Learned Counsel referred the Court to the case of Dalhatu v. Turaki (supra) at page 320.

Learned Counsel maintained that the cases of Amechi v. INEC (supra), Ugwu v. Ararume (supra) and Chime v. Onyia (supra) did not decide that the issue of nomination and sponsorship of candidates by political party is not a political issue and therefore an intra-party affair which the party has the competence to resolve; but that the cases construed Section 34 (1- 3) of the Electoral Act particularly subsection (2) and held that the substitution of a candidate must conform with the conditions laid down in subsection (2).

He argued that neither Amechi nor Ararume went to Court to challenge the power of a party to nominate or sponsor candidates for election and that it was not a life issue that arose for determination in their cases.

Joe Abrahams maintained that the Local Government Election Law 2004 which applies to Local Government Elections in Kogi State does not have a provision similar to Section 34 (2) of the Electoral Act 2006 which laid down grounds or reasons for substitution.

He argued that the facts and circumstances of the instant case are not on all fours with the case of Amechi v. INEC (supra) and Ugwu v. Ararume (supra) and that in the cases of Amechi and Ararume, their names were submitted and later substituted without compliance with Section 34 (2) of the Electoral Act 2006 but in the instant case, the name of the Appellant was never submitted to the 1st Respondent as a candidate.

Learned Counsel submitted that the case of Onuoha v. Okafor (supra) and other similar case have not been set aside by the decisions in Amechi v. INEC (supra) aud Ugwu v. Ararume (supra) and that therefore Ouuoha v. Okafor (supra) and others in the same class are still good authorities for the proposition that nomination and sponsorship of candidates by a political party being a political and intra-party issue is not justiciable in the law Courts being matters within the powers and prerogative of the party to resolve.

He further submitted that cases of were decided on the construction of subsection (2) of Section 34 of Electoral Act 2006 to the effect that substitution of candidates must conform to laid down conditions.

He urged the Court to hold that the principles in the case of and others in the same category are still good law to the extent that political issues such as nomination and sponsorship of candidates for election are internal or intra-party issue which are to be resolved by political party and not the Court.

In his response on this issue, Counsel for the 2nd Respondent Umom Mohammed submitted that Counsel for the Appellant argued this issue and other issues as if it is a common ground that the Appellant’s name was submitted to the 1st Respondent as nominee of the 2nd Respondent. He maintained that the lower Court did make such finding and that in the Claimant’s Statement of Claim on Oath at pages 9-23 of the Record, there is no evidence showing that:-

“the state secretary of the party wrote a letter which it forwarded to the 1st Defendant through which it submitted a list for Chairmanship/Councillorship Election in Olamaboro Local Government Council. ”

as pleaded at paragraph 13 of the Statement of Claim. He further submitted that Exhibits OSO1, OSO2,OSO3, OSO4 and OSO5 on pages 14-23 of the Record attached to the Claimant’s Statement on Oath did not, include the purported letter written by the State secretary of the 2nd Respondent forwarding list of the party’s candidates including the Appellant’s name to the 1st Respondent as pleaded in paragraph 13-14.

Learned Counsel maintained that Exhibit OSO 2 at page 18 of the Record is not a letter as it was not addressed to the 1st Respondent or any person at all, that the maker of the signature or the rubber stamp impression at the foot of Exhibit OSO2 is unknown and that the document i.e. Exhibit OSO 2 is worthless. He referred to the cases of:

Kwara Investment Co. Ltd. v. Garuba (supra);

Dantiye v. Kanya (supra).

Umoru A. Mohammed submitted that the onus is on the Appellant to show that the 2nd Respondent submitted or forwarded his name to the 1st Respondent as its candidate and later substituted his name with the name of the 3rd Respondent before the authorities of Amechi v. INEC (supra), Ogwu v. Ararume (supra), Chime v. Onyia (supra) and Section 23 of the Local Government Law of Kogi State 2004 or Section 34 of the Electoral Act 2006 (if applicable to this case) can be applied. He urged the Court to so hold and affirm the Ruling of the lower Court.

In his response on this issue, U. O. Onoja Counsel for the 3rd Respondent submitted that the issue of who a political party can sponsor in an election is purely an intra-party, political and domestic dispute which Courts have no jurisdiction to entertain. Learned Counsel maintained that this has been the position of the Law and referred to the cases of

Abana v. Obi (2004)10 NWLR Pt. 881 page 319;

Jang v. INEC (2004) 12 NWLR Pt. 886 page 146 at 83;

Adebusoye v. Oduyoye (2004) 1 NWLR Pt. 854 page 406;

Dalhatu v. Turaki (2003) 15 NWLR Pt. 843 page 310 at 320.

Learned Counsel further submitted that the issue at stake before the Court is the issue of who should be the flag bearer of the 2nd Respondent in the election and that though the 3rd Respondent was sponsored by the 2nd Respondent, the Appellant is claiming that he ought to have been sponsored.

U.O. Onoja maintained that it is trite from Dalhatu v. Turak; (supra) at page 320 that the 2nd Respondent has the right to choose its candidate for election and the exercise of such right is non justiciable. He urged the Court to so hold.

In his reply to the 1st Respondent’s submissions on this issue, James Ocholi SAN argued that the Appellant as Plaintiff was not seeking nomination of the 2nd Respondent rather he had been validly nominated and recognized by the 2nd Respondent as her “consensus candidate” as per Exhibit OSO 1 and his name forwarded to the 1st Respondent by the 2nd Respondent as candidate for councillorship election for Olamaboro Ward IV.

He maintained that it is therefore clear that the matter had left the level for scramble for nomination.

Learned Senior Counsel contended that the dispute in this case is a narrow one which is whether the 2nd Respondent after submitting the name of the Appellant to the 1st Respondent and the 1st Respondent acted on same by issuing the Appellant the nomination form as per Exhibit OSO 5 can validly substitute the Appellant with another candidate i.e. 3rd Respondent. Issue Four

“Whether the circumstances of this case justifies the invocation of Sections 16 and 27 of the Court of Appeal Act 1990 in this appeal, to receive evidence and grant the Appellant’s relief”

James Ocholi SAN, Counsel for the Appellant submitted that for the avoidance of doubt, the above issue does not need to be distilled from any Ground of Appeal and referred to the case of

Odedo v. INEC & 2 ors (unreported) SC. 208/2007.

He pointed out that Section 22 of the Supreme Court Act is impari material with Section 16 of the Court of Appeal Act. Learned Senior Counsel referred to Section 27(c) of the Court of Appeal Act and maintained that by Section 16 of the Court Appeal Act, this Court has full powers as that accorded to the Court of first instance in Appeal matters and referred to the cases of

Obi v. INEC (2007) 11 NWLR Pt. 1046 page 565 at 638 paragraphs E-G;

Odedo v. INEC (unreported) at page 15 per Muntakar Coomassi JSC.

James Ocholi SAN submitted that the instant case falls into the category of cases for which this Court should invoke Sections 16 and 27 of the Court of Appeal Act 1990.

He maintained that the instant case is a pre-election matter; the occupant of the councillorship in Olamaboro Ward II constituency only has 3 years tenure and that the 3rd Respondent has spent close to one year in the said office despite the pending suit against him. Learned Senior Counsel pointed out that Pleadings have been closed in this case, all documents and materials needed for this Court to receive evidence are already in the Record.

James Ocholi SAN submitted that ordering a re-trial in this case in the lower Court will cause delay and justice delayed is justice denied; moreso when an Appeal may still be brought against the decision of the lower Court if re-trial is ordered. He maintained that parties will therefore not be able to reap the fruit of this litigation and urged this Court to receive evidence in this suit and grant all the Appellant’s reliefs as contained in the Amended Statement of Claim.

Learned Senior Counsel further urged the Court to set aside the Ruling of the trial Court delivered on 13th January, 2009, allow this Appeal, receive evidence and grant all the Appellant’s reliefs in this Statement of Claim.

In his response on this issue, Counsel for the 1st Respondent Joe Abrahams submitted that this issue for determination formulated by the Appellant is not derived from any of the four Grounds of Appeal. He maintained that the position of the law is that issues formulated outside the Grounds of Appeal are incompetent.

Learned Counsel further submitted that where an issue does not arise from or related to the Grounds of Appeal, it becomes incompetent and liable to be struck out. He stressed that issues cannot be formulated in abstract and referred the Court to the cases of

Zaboley Int. Ltd v. Omogbehin (2005) 17 NWLR Pt. 953 page 200 at 217;

A.N. Samba v. B.O.N. Ltd (2005) 8 NWLR Pt. 928 page 650 at 669 – 617;

Silvanue Odife & Anor. v. Geofrey Aniemeka & Ors. (1992) 7 SCNJ 337;

Francis Nwaneze v. Nuhu Idris & Anor. (1993) 2 SCNJ 139.

Joe Abrahams argued that a close examination of the four Grounds of Appeal shows that issue four does not flow or arise from any of the Grounds of Appeal and that on the authorities as expounded by the cases cited above, the issue is incompetent and should be struck out.

Learned Counsel assuming without conceding that issue four is derived from the Grounds of Appeal that the facts and circumstances of this case will not warrant the invocation of Sections 16 and 27 of the Court of Appeal Act, 1990), submitted that the appellate powers of the Court of Appeal is limited to Grounds of Appeal and issues for determination in Appeal filed before the Court. He referred to the case of

Michael Ndime v. Anthony Chuma Okocha (1992) 7 SCNJ 355.

He further submitted that the alternative relief sought by the Appellant is not founded on any Ground of Appeal and that it is a settled law that no relief can be granted unless there is a Ground of Appeal to ground it. Learned Counsel referred the Court to the case of

Mrs. R. y. Ajibade & anor. v. Madam Theodora Ibironke Pedro & Anor. (1992) 6 SCNJ 44.

Learned Counsel maintained that a relief that is based on an incompetent issue for determination as in the instant case cannot stand for something cannot stand on nothing.

Joe Abrahams submitted that the issue before the trial Court is the challenge to its jurisdiction to hear the matter and that if this Appeal succeeds, the only Order this Court can make is to remit the case back to another Judge of Kogi State High Court for retria!. He maintained that the Court of Appeal cannot assume original jurisdiction over the matter at this stage and urged the Court to so hold.

In his response, Umoru A. Mohammed Counsel for the 2nd Respondent submitted that it is now settled law that appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised, tried or considered by the trial Court.

He pointed out that where the question involves substantial point of law, substantive or procedural, such as pertains to the issue of jurisdiction and it is plain that no further evidence need be adduced to determine the matter, the Court will allow the issue to be raised to prevent an obvious miscarriage of justice. He referred the Court to the cases of

Oshatoba v. Olujitan (2000) 5 NWLR Pt. 655 page 159;

Akpabio v. State (1994) 7 NWLR Pt. 359 page 635;

Ekiti Local Government Area v. Aje Printing (Nig.) Ltd. (2009) 4 NWLR Pt. 1131 page 304 at 323.

Umoru Mohammed maintained that it is common ground that issue four formulated by the Appellant was not canvassed or arose from the ruling of the lower Court. He argued that the issue was not formulated from any Ground of Appeal in this Appeal and that the Appellant did not sought or obtained leave to raise, file and argue it.

He pointed out that it appears the Learned Senior Advocate Counsel for the Appellant formulated this issue from the observation of Tobi JSC in Odedo v. INEC (supra). Learned Counsel maintained that Tobi JSC’s observation reproduced at paragraph 6.1 of the Appellant’s Brief is not an authority for Appellant to formulate and argue fresh issue without leave having been sought and granted.

Learned Counsel submitted that this Court has no jurisdiction to hear and determine an appeal which did not arise from the decision of the trial Court and referred to Section 241(1) of the 1999 Constitution.

Umoru Mohammed further submitted that Sections 16 and 27 of the Court of Appeal Act is also not an authority for the Appellant to formulate issue outside the Ground of Appeal and argue same. He argued that to allow this issue would amount to permitting Counsel to spring surprises in their Briefs against opponents.

He submitted that it is settled law that issues are distilled from valid Grounds of Appeal and not from reliefs sought by Appellant let alone from an “alternative” relief. Learned Counsel maintained that alternative relief is not a live relief until the principal relief is refused and urged the Court to discountenance the Appellant’s issue four and the beautiful argument in support of same.

In his response to this issue, Counsel for the 3rd Respondent U.O. Onoja submitted that the general powers conferred on the Court of Appeal by virtue of Sections 16 Court of Appeal Act is not unlimited such as to be relied upon in every case in order to assume full jurisdiction. He maintained that the purpose of the powers is clear even from the provision itself and referred the Court to the cases of

Copmtoir Ltd. v. Ogun State Water Corp. (2002) 4 SCNJ 342 at 353;

Lagga v. Sarhuna (2009) All FWLR Pt. 455 page 1661 -1662 paras F-D. .

Learned Counsel submitted that from the direct provisions of the Act and its construction in the above cases, it is clear that the purpose of the powers is to clear technical mistakes or obstacles in the way of a fair determination of the Appeal on its merit or of determining the real question in controversy in the Appeal.

He further submitted that the questions in controversy before this Court are not such as would warrant the Court invoking the said provision.

Learned Counsel maintained that where this Court is of the view that the trial Court erred in dismissing this suit for want of jurisdiction which he urged this Court not to so hold, the appropriate step to be taken is to remit the suit back to the trial Court for hearing because the trial of the suit thereafter will entail taking evidence and evaluation of same to determine the issues originally brought before the trial Court.

U.O. Onoja contended that it is trite that evaluation of evidence is a duty which falls almost exclusively within the domain of the trial Court and where evaluation will necessarily entail the determination of the credibility of witnesses, the appellate Court cannot evaluate; hence the only option in such situation is an order for retrial and he referred to the case of

Lagga v. Sarhuna (suprs) at page 1667 paras D – H.

Learned Counsel submitted therefore that the circumstances of this case is not one in which this Court should invoke its powers under Section 16 of the Court of Appeal Act and urged the Court to so hold.

In his Reply to the submissions of the 1st Respondent on this issue, James Ocholi Counsel for the Appellant submitted that the argument of the 1st Respondent under issue four has failed to appreciate the numerous decisions of the Supreme Court cited and discussed under issue four as canvassed by the Appellant.

He urged the Court to overrule the 1st Respondent’s argument as untenable, misconceived and totally inapplicable as the issue has been resolved by the Supreme Court in several cases such as the cases of

Odedo v. INEC & 2 ors. (supra);

Obi v. INEC (supra).

Learned Senior Counsel further urged the Court to apply these decisions in allowing this Appeal and return the Appellant as the elected Councilor for Olamaboro Ward II. He maintained that the purpose of Section l6 of the Court of Appeal Act is to obviate delayed justice and that it is in the interest of justice to allow this Appeal and return the Appellant as the elected Councilor of Olamaboro Ward II, Kogi State.

Having carefully perused the submissions of Counsel on the issues as formulated by the Appellant for the determination of this Appeal, I am of the opinion that issue one is the central issue on which all the other issues revolves and however it is resolved, shall determine the outcome of this Appeal. Therefore it is pertinent to discuss it at this juncture.

Section 7(1) Constitution of the Federal Republic of Nigeria 1999 provides thus:

“The system of Local Government by democratically elected Local Government Councils. Each State of the Federation is required under a law to ensure their existence under a law which provides for the establishment, structure, composition, finance, and functions of such Councils.

The Constitution further provides under Section 7(4) thus;

“The government of a State shall ensure that every person who is entitled to vote or be voted for at an election to a House of Assembly shall have the right to vote or be voted for at an election to a Local Government Council.

Part II of the Second Schedule to the Constitution provides under item II thus:-

“The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a focal government council.”

The combined effect of the provisions of Sections 7(1) and item 22 on the Second Schedule, Part 1 of the Constitution intends that everything relating to Local Government should be in the domain of the State Houses of Assembly rather than on the National Assembly except for power given to the National Assembly in item II of the Concurrent list with respect to registration of voters.

In A.G. Abia State v. A.G. Federation (supra) at 369, the Supreme Court said that:

“Where a provision in an Act of National Assembly relates to the election to the offices of Chairman, Vice-chairman, and Councilors of Local Governments, unless it is in respect of the registration of voters or the procedure of regulating elections to Local Government Council, the provision will be treated as unconstitutional and therefore null and void. ”

Therefore the position of the Law is that save and except for Laws of the Federation with respect to registration of voters and the procedure regulating elections to a Local Government Council, it is the House of Assembly of a State and not the National Assembly which has power to make laws with respect to matters relating to or connected with election to the office of Chairman or Vice Chairman of a Local Government Council in that State or to the office of Councilors therein

The provisions of the Electoral Act 2006 enacted by the National Assembly which establishes the Independent National Electoral Commission and regulates the conduct of Elections at Federal, State and Area Council of the Federal Capital Territory Abuja does not regulate the conduct of Elections into State Local Government Councils.

The Kogi State Government pursuant to the powers conferred on State Governments by Sections 4(7), 7(1) and 7(4) of the Constitution of the Federal Republic of Nigeria 1999 enacted the Kogi State Local Government Election law 2004. I am of the opinion that the said legislation is not inconsistent with any Act of the National Assembly or any provision of the Constitution; it is therefore a competent legislation. See INEC v. Musa (2003) 3 NWLR Pt. 806 page 72 at 155,203-204.

Since the National Assembly has no power to make law for the regulation of election to a Local Government Council, the doctrine of covering the field does not arise in this case,

The doctrine of covering the field is usually applied between a law enacted by the Federal Legislature and that enacted by a State legislature on the same subject, such as where identical legislations on the same subject matter are validly passed by the different legislative bodies by virtue of their constitutional powers to make laws. In such a situation, it would be more appropriate to invalidate the identical law passed by the State House of Assembly on the ground that the Law passed by the National Assembly has covered the whole field of that particular subject-matter. See:

A.G. Ogun State v. A.G. Federation (1982) 3 NCLR 166;

A.G. Abia State v. A.G. Federation (2002) 6 NWLR Pt. 763 page 264 at 432.

463-465 and 474-475.

It has been argued by learned Senior Counsel James Ocholi that the provisions of the Kogi State Local Government Elections Law 2004 are subject to the provisions of the Electoral Act 2006 while the learned Counsel for the 1st Respondent contended that the provisions of Section 34(1) of the Electoral Act 2006 and Section 23 of the Kogi State Local Government Election Law 2004 are similar only to the extent that they confer on political parties the power to substitute their candidates. It is pertinent at this point to reproduce the provisions of both Legislations.

The Electoral Act 2006 provides as follows:-

“Section 34(1) A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the Election.

(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. ”

Similar provision of the Kogi State Local Government Election Law 2004 provides:

“Section 23 Any political party which wishes to change any of its candidates for any election under this Law may signify its intention in writing to the Commission not later than 5 days to the date of Election. ”

A careful perusal of both legislations will reveal that they are neither identical nor is there anything in the provisions of the Electoral Act 2006 which tends to suggest that the Kogi State Local Government Election Law should be subject to it.

The intendment of the Law Makers of the different Legislative Houses is not the same. Whereas under Section 34 of the Electoral Act 2006 compliance with its provision is mandatory for any political party intending to change its candidates to furnish a cogent and verifiable reason for doing so to the Commission within 60 days to the Election, under the provision of the Kogi State Local Government Election Law 2004 it is directory and there is no obligation on the political party to inform the body charged with the conduct of the Election into the Local Government Councils of the reason for the change or substitution of its candidate, which must be due within 5 days to the election.

It should also be noted that while the provisions of the Electoral Act 2006 which was applied in the case of Amaechi v. INEC deals with election into offices provided for under the Constitution, the provisions of the Kogi State Local Government Election law 2004 deals with Election of Chairman, Vice-chairman and Councilors of Local Government Councils.

The requirement under the Electoral Act 2006 that the reasons for the change should be cogent and verifiable does not exist under the State law.

Learned Senior Counsel for the Appellant James Ocholi SAN referred the Court to the case of Amaechi v. INEC (2008) 5 NWLR Pt. 1080 page 227 particularly the dictum of Oguntade J.S.C. at pages 292 . 293 and 296 paragraphs C-D where he said:

“The central issue to be decided in this appeal is whether or not the two courts below were correct in their conclusion that the reason given by the Peoples Democratic Party (PDP) for substituting Amaechi with Omehia satisfied the requirements of section 34 of the Electoral Act, 2006. The said section provides:

’34(1) A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the election.

(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.’

Now, it is not in dispute that in the PDP primaries for the Governorship elections in Rivers State, Amaechi had 6,527 votes to emerge the winner. The individual who came second in the primaries was Senator Martyris Yellow J.S. who scored 28 votes. The 3rd candidate Samuel Horseful had 10 votes. The 4th and 5th candidates at the primaries had 6 and 4 votes respectively. Each of the three other candidates scored zero. It is no exaggeration to say that Amaechi won the primaries overwhelmingly. ”

At page 296 the Jurist further said:

“The Respondents’ Counsel in their briefs have strenuously argued that political parties have the right to put up as candidates for elective offices any persons they deem fit. They relied with a measure of confidence on the decisions of this Court in Dalhatu v. Turaki (20030 7 SC 1; (2003) 15 NWLR (pt. 843) 310 and P.C. Onuoha v. R.B.K. Okafor (1983) 2 SCNLR 244 and some others. Counsel would appear however, to have overlooked the fact that there were no provisions of the Electoral Act similar to section 34(1) of the Electoral Act 2006 in force at the time these cases they relied upon were decided. ”

It can be safely said that the decision in the above case and the provisions of Section 34(1) of the Electoral Act 2006 is not applicable to the present case. On the argument canvassed by both parties to the dispute at the trial Court on whether the case of Amaechi v. INEC and the provisions of Section 34(1) of the Electoral Act 2006 is relevant to their dispute, it is the finding of the trial Court at page 224 of the Record of Appeal that:-

“The jurisdiction of this Court is conferred by the provisions of Section 6 of the 1999 Constitution and the law. The applicable law in this case is the Local Government Elections Law 2004 in view of Section 4(7)(a) of the Constitution. There is no corresponding provisions of Section 34 of the Electoral Act, 2006 upon which Amaechi v. INEC (supra) and other related cases in the Local Government Election Law 2004 were decided. What 1 am saying, there is no provision in the Local Government Elections Law 2004 stating that any political party that wishes to change/or substitute its candidate at election must give cogent and verifiable reasons. It is the reason for the change of candidate that is questioned in the Court which must be cogent and verifiable. This Court has no power to amend or alter the Local Government Election Law 2004. I will do no such thing. So, the provisions of the Local Government Election Law, 2004 has to be given its ordinary and natural meaning. See Olowu v. Abolore (supra).

I therefore hold that the case of Amaechi v. INEC (supra) and all other related cases based on Section 34(1) of the Electoral Act, 2006 are not applicable to this case. Instead, it is Section 23 of the Local Government Election Law 2004 that is applicable to this case. In consequence, I therefore hold that the issue of who should be candidate of a given Political Party (2nd Defendant/Appellant), this case, PDP at the election is clearly a Political one to be determined by the rules and the constitution of the said party and thus a domestic issue which is not justiciable in a Court of law. Therefore, no one has the locus standi to contest it. See: Ogunbiyi v. Ogundipe (1992) 9 NWLR (Pt. 263) 24,-

Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310 at 320;

Adebusoye v. Oduyoye (2004) 1 NWLR (Pt. 854) 406;

Onuoha v. Okafor (1983) 2 SCNLR 244.”

This opinion of the learned trial Judge is the correct position of the law. In a plethora of authorities, the Courts have been enjoined not to interfere in the domestic affairs of political parties and matters raising political questions.

Ehinlanwo v. Oke (2008) 16 NWLR Pt. 1113 Page 357 at Page 402;

Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 page 365;

Onuoha v. Okafor (1983) 2 SCNLR 244.

It follows therefore that a political party has the unfettered right to nominate or sponsor a candidate it likes for any election and the Courts have no jurisdiction to inquire into the issue except in circumstances when the provisions of specific Statutes have to be interpreted or where the provisions contained in documents regulating the activities of political parties are brought for the construction of the Court or when there is an infraction of provisions contained in documents regulating the activities of the party.

A political party can still take a number of factors into consideration in arriving at the final list of its candidates to be sent to the electoral body. Such decisions may be informed by certain political considerations such as ensuring geographical spread and other factors. Therefore, failure to act on result of primaries may not per se be enforceable in the Courts. See Ehinlanwo v. Oke (supra) at Page 402.

In the present case, the issue as to who should be the candidate of the Peoples’ Democratic Party (PDP) for election as Councilor in Olamaboro Ward II is a decision of the PDP and therefore not within the jurisdiction of this Court.

This first issue is resolved in favour of the Respondents.

Having resolved this issue, I am of the opinion that it will be an academic exercise to embark on discussion of the other issues

This Appeal is unmeritorious, ought to be dismissed and is hereby dismissed accordingly.

There shall be no Order as to costs.

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Other Citations: (2009)LCN/3470(CA)