Rt. Hon. Rotimi Chubuike Amaechi V Inec & 2 Ors (2008)
LAWGLOBAL HUB Lead Judgment Report
The appellant, a member of the Peoples Democratic Party (PDP) was one of the eight candidates who contested the primaries for nomination as Peoples Democratic Party (PDP) candidate for the Rivers State Governorship election scheduled for the 14th day of April, 2007. It is not disputed that from the records, he scored the highest votes cast at the primary election and was not only declared the winner of same but his name and relevant particulars were duly sent by the party, the 3rd respondent in this appeal, to the 1st respondent as the 3rd respondent duly nominated candidate for the scheduled general election. The parties are agreed that the 2nd respondent was never a candidate in the primary election conducted to nominate the candidate for the Rivers State Governorship election neither did he win the same. Upon the receipt of the nomination of the appellant, the 1st respondent caused the name of the appellant to be published in the Constituency as required by the Electoral Act, 2006. However, on the 2nd day of February, 2007, the 3rd respondent acting under its powers of substitution or change of candidate for the election, purported to exercise same by submitting the name of the 2nd respondent to the 1st respondent as a substitute for the appellant for the said election on the ground that the name of the appellant was earlier submitted “in error”. Meanwhile, and in anticipation of the threat to substitute him with the 2nd respondent, the appellant caused a writ of summons to be issued against the 1st respondent on the 20th day of January, 2007 and in his amended statement of claim sought inter alia the following reliefs: Declarations that it is only a court order that can disqualify him from contesting the elections and that there were no cogent and verifiable reasons for substituting his name as the PDP candidate. The trial court held that the substitution was proper. This was confirred by the court of appeal hence this further appeal to the Suprme Court. Appeal allowed. The Supreme Court held that there were no cogent and verifiable reasons for the substitution of the appellant by the 3rd respondent.
On the Main Appeal
Whether the Court of Appeal was not in error in allowing fresh evidence on appeal when no exceptional circumstances was shown to warrant such admission.
Whether having regard to the undertaking before the court, the court below ought not have followed the decision of the Supreme Court in Ugwu v. Ararume (supra)?
Whether there exists cogent and verifiable reasons to warrant the substitution of the appellant’s name with that of any other person in breach of Section 34 of the Electoral Act, 2006 and if not whether the purported substitution of the appellant’s name is not null and void.
Whether INEC (1st Respondent) can rely on extraneous facts or any facts not presented by a political party seeking substitution to verify reasons given seeking substitution.
Whether there was in existence an indictment of the Appellant for same to be used as a basis to verify the reasons of error given by the 3rd respondent for seeking the substitution of the Appellant’s name.
Whether having regard to the concept of LIS PENDENS and the fact that at the material time of the election, appellant being the only lawful candidate of the PDP, he ought not to be declared the winner of 14th April, 2007 gubernatorial elections in Rivers State.
1st Cross-appeal Issues
Whether the Court of Appeal was correct when it held that the appeal in issue did not abate upon the 2nd respondent being sworn in as the Governor of Rivers State whereupon he acquires constitutional immunity pursuant to Section 308 of the 1999 Constitution.
Whether the Court of Appeal was correct in law when after finding that the entire gamut of appellant’s dispute arose from nomination and sponsorship (matter within the domestic sphere of the 3rd respondent) it did not rule the entire dispute non-justiciable.
Whether the proceedings were void ab initio on the basis that evidence viva voce was not taken in a suit commenced by writs of summons/Statement of claim in respect of reliefs that were all declaratory in nature?”
PAGE| 2
2nd Cross-appeal Issues
Whether the court below was right in law to hold that the appeal before it was an election related matter and having so held went further to hold that the second respondent was not entitled to enjoy the benefits of the immunity conferred on him by virtue of Section 308 of the Constitution of the Federal Republic of Nigeria, 1999 having taken the oath of office and the oath of allegiance as the Governor of Rivers State and placing reliance on the cases of A.D. v. Fayose and Obih v. Mbakwe to arrive at this conclusion
Matters Considered
The Constitution of a political party cannot override or be superior to the constitution or any valid Law in Nigeria
The Court of appeal can only receive additional evidence in determining appeals before it where the evidence sought to be tendered arose after the date of trial; the evidence if admitted would have an important effect on the case and it is credible
Trial and conviction by a court is the only constitutionally permitted way to prove guilt for the Criminal Offences of fraud and embezzlement – It is only in such instance that an aspirant to the office of Governor can be adjudged ineligible for the office of Governor
The Economic and Financial Crimes Commission upon due investigation of suspected offenders has a duty to prosecute such offenders in court, not to send the case file to the government
Section 308 of the Constitution which cloaks Governor with Immunity is to protect the dignity of the office and to allow the Governor to carry out his duties without difficulty – same cannot however be invoked where the Res in dispute will be destroyed permanently with the effuxion of time
A political party can control it’s affairs only to the extent that it does not contravene the constitution and Laws of Nigeria
A Court does not make a declaration on admission or in default of defence without hearing evidence
Pre-election matters are within the jurisdiction of the ordinary courts not the Election tribunals
A Court in interpreting statutes or the constit
ution must read related provisions together to get the true meaning of same
The Courts must move away from the bondage of technicalities and do substantial justice in every case
Emphasis and responsibility in elections are on political parties – there is no independent candidacy – political parties are the ones that contest elections
Failure to comply with a procedure laid down by law for carrying out an act will render the act done void
Where a candidate for an election is wrongfully substituted by another, on obtaining judgment; he steps into the shoes of his invalidly nominated opponent whether as loser or winner
The Supreme Court has no jurisdiction to nullify or order elections
On the various forms of contempt of court – It includes victimisation of a witness during or after court proceedings or interfering with the jurisdiction of the court
The Supreme Court has the power to make consequential orders and grant reliefs which the circumstances and justice of a case demand on the principle of Ubi jus Ibi remedium even if the remedy is not provided at common law or by statute
On the nature of democracy – it is based on centrality of laws, democratic values and human rights – a majority decision cannot deprive an individual of his guaranteed fundamental rights
The right of political parties to substitute candidates to an elective office has been curtailed by section 34 of the Electoral Act 2006
In an election related matter where the status of a governor is being challenged the immunity conferred on him is also being challenged and as such he would not enjoy any immunity from the suit
Courts have the powers to grant reliefs not specifically asked for as a consequential relief where it’s necessary to protect established rights – A consequential relief is one made to give effect to the judgment it follows
In interpreting statutes – the intent of the legislature must be derived from the plain and unambiguous expressions or words used therein
PAGE| 3
The word ‘shall’ in section 34(2) of the Electoral Act 2006 is mandatory and not directory – a party must give cogent and verifiable reasons for changing its candidate
Every Judgment of a court must be supported by law
Facts of which the court must take judicial notice need not be proved – facts which constitute an indictment can be judicially noticed – but not the ‘indictment’ which must be proved
On definition of the term “judicial notice” – It means facts which a judge can be called upon to receive and to act upon from his general knowledge or from enquiries to be made by him
It is a political party that is obliged to give cogent and verifiable reasons in it’s application to substitute a candidate for an election under the Electoral Act 2006
The application of the doctrine of stare decisis does not involve an exercise of judicial discretion – it is mandatory – it is only applicable where the cases have a likeness
The application for substitution of candidates for an election by a political party must be in writing not oral or verbal
Indictment – same means the formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person
Members of a political party are bound by the constitution of the party – a party has the right to choose it’s candidates even without subjecting the candidate to primaries
A political party does not have the right to substitute any candidate for election less than sixty days to the election – except where the candidate dies
the power to disqualify a candidate for an election from contesting same is in the High Court not INEC
Once the court of appeal makes a decision as to its guiding principles it is bound by law to follow it
Definition of “Cogent” and “Verifiable”
Definition of indictable offence – It is an offence triable on information whether or not under the express provision of section 304(1) of the Criminal Procedure ordinance
Courts have a duty in interpreting statutes to
give same their ordinary grammatical meaning
The doctrine of lis pendens prevents any transfer of any right or the taking of any step capable of foisting a state of helplessness on the parties or the court during the pendency in court of an action and after the action
The principle of waiver – a right that inures to the benefit of the public cannot be waived – A party who participates in an action commenced by improper procedure has waived his right – he cannot later be heard to complain
Equity does not make the law – it only assists the law
Principles Considered & Held
The Constitution of a political party cannot override or be superior to the constitution or any valid Law in Nigeria – It must be borne in mind that the Political Parties were a creation of section 221 of the 1999 Constitution. The same 1999 constitution in section 222 imposes the duty on parties to file copies of their Constitution with Independent National Electoral Commission (INEC). Nothing in a party’s Constitution can override or be superior to the Constitution of Nigeria and the Laws validly enacted by the authority of the Nigerian Constitution. – Per Oguntade, JSC (Pg. 68)
The Court of appeal can only receive additional evidence in determining appeals before it where the evidence sought to be tendered arose after the date of trial; the evidence if admitted would have an important effect on the case and it is credible – The power of the court below to receive further evidence on appeal is governed by Order 1 rule 19(2) of the Court of Appeal Rules 2002 which provides:
“(2) The court shall have power to receive further evidence on questions of fact either by oral examination in court, by affidavit or by deposition taken before an examiner or Commissioner as the court may direct, but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.
There are judicial authorities governing the manner in which the power to receive further evidence on appeal should be exercised. In Obasi & Ors. v. Onwuka & Ors., this court
PAGE| 4
per Oputa J.S.C. considered the circumstances under which fresh evidence may be received on appeal. At pages 984 – 985 this court said:
“The guiding principle here is that to avoid surprise to the opposite party the Plaintiff should plead all the facts and all the documents he intends to rely on at the trial of the case. During that trial he should establish by evidence oral or documentary, those facts on which his case rests and depends. The trial Court usually comes to a decision on the totality of the evidence led on both sides. The purpose of an appeal is to find out whether on that evidence and the applicable law the trial Court came to right decision. It will normally be wrong to “judge” the trial judge on the basis of evidence which was not before him and which he could not have therefore considered. This looks like the brutal absurdity of commanding a man today, to do something yesterday. To talk therefore of assessing the rightness or wrongness of the trial Court’s verdict today by evidence that will be given tomorrow is to talk in blank prose. This is one reason why appellate courts are very reluctant to admit “fresh evidence”, new evidence “or additional evidence” on appeal except in circumstances where the matter arose ex improviso which no human ingenuity could forsee and it is in the interest of justice that evidence of that fact be led:- R. v. Dora Harris. But by and large, at least in criminal cases, (and the principle should also be the same in civil cases) the courts lean against hearing fresh evidence on appeal, see R. v. Alexander Campbell Mason. See also R. v. Walter Graham Rowland.
In civil cases the Court Will permit fresh evidence in furtherance of justice under the following circumstances
(i) Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.
(ii) Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case.
(iii) Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible. – Per Oguntade, JSC (Pg. 71 – 72)
(b) It is now trite that for an appeal court to admit additional evidence of facts on appeal, there must exist special grounds. In Asaboro v. Aruwaji, such special grounds were stated as follows:
The evidence sought to be
adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial.
The evidence shall be such as if admitted, it would have an important not necessarily crucial, effect on the whole case, and
iii. The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible,
The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the lower court in favour of the applicant had it been available at the trial court.
The evidence should be weighty and material, where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
See: Owatta v. Anyizor; Obasi v. Onwuka; A-G Federation v. Alkali … In the case of Owata v. Anvigor (supra) particularly at page 16, this court stated that all the condition listed above must be satisfied together and at the same time before an appeal court can admit further or fresh evidence on appeal. I observe that the only reason relied upon by the court below to admit that fresh evidence was because the document sought to be admitted came into existence on 30/3/07 when judgment had already been delivered on 15/03/07. Then, what happened to the other conditions? This makes it difficult for me to agree with the argument advanced by J. B. Daudu, SAN who argued on same point, that it is automatic to admit such documents as further or additional evidence so long as it is pleaded and or is relevant to the fact in issue. – Per Muhammad, JSC (Pg. 163, 165 – 166)
(c) I do not hesitate in proffering an answer in the negative having carefully read those paragraphs again. For a party to tender a document in evidence, there must have been contained in the pleading, statements of fact relating to that document. See O.H.M.B. v. B.B. Apugo & Sons Ltd. Let me say that an appellate court reserves the discretion, under the rules of court, to grant leave to adduce new evidence or new facts in a matter that is on appeal to it. That discretion if properly exercised, is for the furtherance of justice. The exercise must however be judicious and it is in this respect that the appellate court must take into consideration certain guide-lines before granting leave to adduce new evidence: the guidelines are: –
“(1) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial.
PAGE| 5
(2) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and
(3) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.” – Per Aderemi, JSC (Pg. 191)
Trial and conviction by a court is the only constitutionally permitted way to prove guilt for the Criminal Offences of fraud and embezzlement – It is only in such instance that an aspirant to the office of Governor can be adjudged ineligible for the office of Governor – The trial and conviction by a court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. Clearly, the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an administrative panel of inquiry implies a presumption of guilt, contrary to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999. I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power. See Sokefun v. Akinyemi; Garba v. University of Maiduguri … It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a Court of Law. A judicial Commission of inquiry or an administrative panel is not the same thing as a court of law or its equivalent. Because a court of law operates within a judicial hierarchy any person wrongly convicted is enabled to contest his conviction to the Supreme Court of Nigeria. This is a right granted by the Constitution of Nigeria. It has not been curtailed or abridged by section 182(l)(i) above. It seems to me that section 182(l)(i) only enables a Judicial Commission of Inquiry or administrative tribunal to determine the culpability of a citizen where it is alleged that such citizen has been in breach of the standards of behaviour expected in public life. Where such Inquiry or tribunal finds a citizen liable or culpable of a conduct bordering on criminality, and the Federal or State Government accepts such report through a published white paper, it is still not good enough to deny a citizen eligibility to the office of Governor unless and until he is afterwards prosecuted in a court of law and found guilty. This approach in my view is buttressed by section 182(2) of the 1999 Constitution … It is simply impermissible under a civilized system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country. See also article 7(1)(a) of the African charter on Human Rights cap. 10., Laws of the Federation. The court below would appear not to have paid heed or attention to the reasoning of this court in Action Congress & Anor. v. Independent National Electoral Commission (INEC) (supra) in coming to the conclusion that Amaechi was indicted. Indeed, Amaechi needed not have asked his supposed indictment to be set aside by Kuewumi since the same was not in any case cognizable under the law. No court of law ought to pay any iota of regard to such alleged indictment. – Per Oguntade, JSC (Pg. 74, 75 – 77)
(b) In any event, I do not accept the argument that a mere accusation or charge or indictment is sufficient for the purpose of section 34 of the Electoral Act, 2006 having regard to the requirement that the reason of indictment must be cogent and verifiable particularly as the word “verify” connotes to prove to be true, to confirm, to establish the truth of: to examine or test the correctness or authenticity of something. If the word is used, as in the instant case in a statute, it is presumed to have been used in its legal sense meaning to confirm or substantiate by oath or affidavit – see Action Congress v. INEC. The above being the position it follows therefore that even if an indictment was proved to exist, there is the additional requirement that it be proved to be true, which still does not exist in this case. – Per Onnoghen, JSC (Pg. 144)
(c) From the definitions of “indictment” that I have set out above; indictment is just a formal accusation; it cannot be assimilated to a sentence and/or conviction after a criminal trial for a criminal offence. For the accusation of a criminal offence to be successfully levied against a person, such an offence, ordinarily must be established before an impartial court of law. The cardinal principle here is that once a person is accused of a crime and once the adjudicating body is anything less than a judicial body vested with criminal jurisdiction, the person so subjected to that trial before that body is as good as not having undergone any criminal trial. No matter how well conducted the trial might be, its verdict is null and void and can never foist a conviction or sentence, known to law, on the person. Perhaps I should further say that an administrative body lacks the jurisdiction and competence to try the issue of crime, for such a body is not a court much less a criminal court. Only a court vested with criminal jurisdiction is competent to hear and determine the criminality of the person accused. See F.C.S.C. v. Laoye; Garba v. Uni. of Maiduguri and Unthmb v. Nnoli. – Per Aderemi, JSC (Pg. 187 – 188)
The Economic and Financial Crimes Commission upon due investigation of suspected offenders has a duty to prosecute such offenders in court, not to send the case file to the government – The EFCC is a statutory body created under the Laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence, once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a court of law. I know of no provision of the law which enables EFCC upon the conclusion of investigation in a criminal case to send the report or case file to either the Federal or State Government. I am surprised therefore to see that INEC pleaded that Amaechi was indicted by EFCC and that the report on the indictment was accepted by the Federal Government. That procedure is not backed by any law in force. Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and
PAGE| 6
prosecution of criminal offences. – Per Oguntade, JSC (Pg. 77)
Section 308 of the Constitution which cloaks Governor with Immunity is to protect the dignity of the office and to allow the Governor to carry out his duties without difficulty – same cannot however be invoked where the Res in dispute will be destroyed permanently with the effuxion of time – Section 308 above is not meant to deny a citizen of this country his right of access to the court. It is a provision put in place to enable a Governor, while in office, to conduct the affairs of governance free from hindrance, embarrassment and the difficulty which may arise if he is being constantly pursued and harassed with court processes of a civil or criminal nature while in office. It is a provision designed to protect the dignity of the office. However, the proviso under section 308 ensures that the period when a governor enjoys immunity shall not be taken into account in computing the time limit for initiating an action under the Statute of limitation. Section 308 cannot be relied upon where the nature of the suit is such that the Res in dispute will be destroyed permanently with the effluxion of time. To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court. It is only in a case where a deferment of plaintiff s right of action is not likely to destroy the Res in the suit that section 308 can be invoked. In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action. – Per Oguntade, JSC (Pg. 79)
A political party can control it’s affairs only to the extent that it does not contravene the constitution and Laws of Nigeria – This is a pre-election matter premised on the breach of Amaechi’s right derived from under the Constitution of Nigeria and Section 34 of the Electoral Act, 2006. The claim of Amaechi is simply that his substitution by P.D.P was not in accordance with section 34 of the Electoral Act, 2006. The court has a duty to enforce the provisions of the laws validly enacted by National Assembly pursuant to powers derived from the Constitution. The Electoral Act 2006 is one of such laws. The major flaws in the case of the respondents throughout this case is the belief held by them that the right of political parties to decide who should contest an election as party candidates is superior to the provisions of the Constitution of Nigeria and the Laws. It is my view that a political party is able to control the affairs of the party only to the extent that the exercise of such control does not run against the provisions of the Constitution and Laws of Nigeria. – Per Oguntade, JSC (Pg. 80)
A Court does not make a declaration on admission or in default of defence without hearing evidence – It is trite law that the court does not make declarations of right either on admission or in default of defence without hearing evidence. That is however not the same thing as saying that the proceedings in the two courts below up to this court are void for the reason that evidence viva voce was not taken. – Per Oguntade, JSC (Pg. 80)
Pre-election matters are within the jurisdiction of the ordinary courts not the Election tribunals – Section 178 above is a provision of the 1999 Constitution intended to ensure a smooth transition from one administration to another. It is not a provision to destroy the right of access to the court granted to a citizen under section 36 of the same Constitution. In the same way section 285(2) relied upon by senior counsel cannot be construed to destroy the jurisdiction which the ordinary courts in Nigeria have in pre-election matters. Were the court to construe section 285(2) as having the effect of ousting the jurisdiction of the ordinary court in pre-election matters all that a defendant would need to do to frustrate a plaintiff is to stall for time and obtain adjournment to ensure that a plaintiffs case is ‘killed’ once an election is held… As I shall shortly show, it is my view that the approach of the respondents to this case was to ‘kill’ Amaechi’s case in the misconceived notion that once elections were held the court would lose its jurisdiction. It is my firm view that the jurisdiction of the ordinary courts to adjudicate in pre-election matters remains intact and unimpaired by sections 178(2) and 285(2) of the 1999 Constitution. – Per Oguntade, JSC (Pg. 82 – 83)
(b) This is clearly not an election petition within the meaning of section 285 of the Constitution. It is not a case dealing with the conduct of the election but it is a pre election matter in which the ordinary courts of the land have an undoubted jurisdiction to adjudicate in pre election matter or matters not connected with the conduct of the election. The suit herein is not affected by sections 198(2) and 285(2) of the Constitution. I accordingly dismiss the Cross – appeals as they are unmeritorious. – Per Musdapher, JSC (Pg. 106)
A Court in interpreting statutes or the constitution must read related provisions together to get the true meaning of same – It is settled law, that the court in interpreting the provisions of a statute or Constitution, must read together related provisions of the Constitution in order to discover the meaning of the provisions.
S.C. 252/2007
