Senator Ifeanyi Ararume V. Independent National Electoral Commission & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

HON. JUSTICE OLUFUNMILOLA OYELOLA ADEKEYE, J.C.A.

This is an appeal against the judgment of the Federal High Court Abuja Division delivered on the 16th of February 2007, By an Amended Writ of Summons and statement of claim filed on 7/1/07 – the appellant, Senator Ifeanyi Ararume as plaintiff before the lower court sued the 1st Respondent the Independent National Electoral Commission as defendant. The 2nd Respondent Engineer Charles Ugwu and 3rd Respondent the Peoples Democratic Party were joined by leave of court as 2nd and 3rd defendants respectively.

The appellant as plaintiff claimed as follows:-

(1) A declaration that the option of changing or substituting a candidate whose name is already submitted to INEC by a political party is only available to a political party and/or the Independent National Electoral Commission (INEC) under the Electoral Act 2006, only (when) the candidate is disqualified by a court order.(sic)

(2) A declaration that under section 32(5) of the Electoral Act 2006 it is only a court of law by an order that can disqualify a duly nominated candidate of a political party whose name and particulars have been published in accordance with section 32(3) of the Electoral Act 2006

(3) A declaration that under the Electoral Act 2006, Independent National Electoral Commission (INEC) has no power to screen, verify or disqualify a candidate once the candidates political party has done its screening and submitted the name of the plaintiff or any candidate to the Independent National Electoral Commission (INEC).

(4) A declaration that the only way Independent National Electoral Commission (INEC)can disqualify, change or substitute a duly nominated candidate of a political party is by court order.

(5) A declaration that under section 32(5) of the Electoral Act 2006, it is only a court of law, after a law suit, that a candidate can be disqualified and it is only after a candidate is disqualified by a court order that the Independent National Electoral Commission (INEC)can change or substitute a duly nominated candidate.

(6) A declaration that there are no cogent and verifiable reasons for the Defendant to change or entertain the change of the name of the plaintiff as the candidate of the Peoples Democratic Party (PDP) for the April 14 2007 Governorship Election in Imo State.

(7) A declaration that it is unconstitutional, illegal and unlawful for the defendant to change the name of the plaintiff as the Governorship candidate of Peoples Democratic Party (PDP) for Imo State in the forthcoming Governorship Election in Imo State after the plaintiff has been duly nominated by the Peoples Democratic Party (PDP) as its candidate and after the defendant has accepted the nomination and published the name and particulars of the plaintiff in accordance with section 32(3) of the Electoral Act 2006 until the High Court disqualifies the plaintiff or until cogent and verifiable reasons are given to the Defendant by whosoever desires to make the change.

(8) An Order of perpetual injunction restraining the defendant from changing or substituting the name of the appellant as the Imo State Peoples Democratic Party Governorship candidate for the April 2007 Imo State Government Election unless or until a court order is made disqualifying the plaintiff and or until cogent and verifiable reasons are given as required under section 34(2) of the Electoral Act.

Summary of the Facts

The facts are that the appellant emerged winner at the Governorship primaries conducted by the Peoples Democratic Party for Imo State on the 14th of December 2006. The appellant at the contest scored 2,061 votes as against the 36 votes scored by the 2nd Respondent Engineer Charles Ugwu. The name of the appellant was forwarded to INEC by the 3rd Respondent as the Governorship candidate sponsored by PDP in compliance with the provisions of section 32(1) and (2) of the 2006 Electoral Act, on the 14th of December 2006 as shown in Exhs F and G. The 3M Respondent on the 19th of January 2007 forwarded the name of the 2nd Respondent to the 3rd Respondent under a letter dated 18th of January 2007 Exh K as the candidate it was sponsoring for Imo State Governorship in April 2007. Parties addressed the court on the issues formulated and settled. The learned trial judge granted an order of interim injunction restraining the Respondents from taking any steps towards changing or substituting the name of the applicant as Imo State Peoples Democratic Party Governorship candidate for the April 2007 Election pending the hearing and determination of the suit before the court.

On the issues settled before the trial court as to whether it had jurisdiction to entertain the suit, the learned trial judge found in favour of the Federal High Court having jurisdiction over the suit as it affected the 1st Respondent a Federal Government Agency. The learned trial judge held that the whole case is hinged on the interpretation of section 34 of the Electoral Act 2006.

In the penultimate paragraph of the judgment at pages 573-574 of the record of proceedings the learned trial judge held that:-

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

Consequently I hereby declare as follows-

Relief 1 in the negative

Reliefs 2-9 appear to have been abandoned as they were not addressed.

Reliefs 6 – I answer to the effect that a reason was given and the duty of verification lies with INEC.

Relief 7 – I affirm only to the extent that a court disqualification of a candidate is at a requirement of either section 32(3) or section 34 of the Electoral Act 2006 for a change of candidate.

Relief 8 – fails and cannot be granted because the political party has the power to change its candidate in compliance with the laid down procedure.”

Being dissatisfied with this judgment the plaintiff filed an appeal to this court. The appellant filed his Notice of Appeal on the 21st of February 2007.

At the hearing of this appeal on the 9th of March 2007, Counsel to the appellant and the 1st to the 3rd Respondents on their quest for an accelerated hearing of the appeal, agreed to waive compliance with the provisions for filing of briefs of argument in Order 6 of the Court of Appeal Rules 2002.

The appeal was subsequently heard on the oral submission of counsel. Briefs already filed by the appellant and 1st respondent were thereby withdrawn and struck out.

Prince Fagbemi learned senior counsel for the appellant drew attention of this court to the thrust of this appeal which is the interpretation of section 34(1) and (2) of the Electoral Act, 2006 and the role of the political parties. He made reference to the amended writ of summons and statement of claim, the undisputed facts before the court as those expressly admitted or issues settled on pleadings, averments in paragraphs 1 – 18 of the amended statement of claim, result of the primaries for PDP in all the States exh. E, and other related particulars.

Exh. F list of gubernatorial candidates forwarded to INEC on the 14th of December, 2006, within the 120 days specified by the electoral laws and INEC timetable before the gubernatorial elections slated for 14/4/07.

The 3rd respondent PDP issued another letter dated 18/1/07 and submitted to INEC on 19/1/07 in which it forwarded different names of PDP Governorship candidate and Deputy for Imo State vide exh. K for information and necessary action.

The learned senior counsel further observed that exh. K did not comply with section 34 of the Electoral Law. The learned trial Judge noted in her judgment at pages 570 – 571 of the record that exh. K cannot be acted upon under section 34(1) and (2) as it did not specify whether it was substituting or changing candidate. The same letter was re-issued on the 2nd of February, 2007 by way of re-confirmation of the letter dated the 18th of January, 2007 exhs. L and L1. The letter exh. L was meant to substitute Chief Charles Ugwu for Senator Godwin Ararume whose name was submitted in error.

The learned senior counsel at this juncture raised two issues for determination as follows:-

(a) Was the learned trial Judge right in holding that 3rd respondent had rightly substituted the name of the appellant with that of the 2nd respondent as their gubernatorial candidate for the April 2007 elections in Imo State?

(b) Whether the learned trial Judge was right in holding that reliefs 2 – 9 of the amended statement of claim had been abandoned.

On Issue One

The learned senior counsel for the appellant spotted the defects in the reconfirmation letter exhs. L – L1 in that:-

(1) Exhs. L – L1 were written to the 1st respondent by the 3rd respondent after both the 2nd – 3rd respondents were served with the amended writ and statement of claim filed in respect of the suit at the lower court on 8/2/07. The letters were written after the 3rd respondent became aware of the plaintiff’s case. Exhs. L- L1 were therefore written when this matter was sub-judice. The lower court held in its judgment that exh. L had cured the defect in exh. K, whereas exh. L has no probative value.

Respondents are caught by the doctrine of lis pendes.

Reference was made to the case of Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) pg.1 at pg. 17.

Section 91 of the Evidence Act should be invoked as exh. L was made when proceedings were anticipated.

(2) There was a subsisting court order restraining the 3rd respondent from taking any steps to substitute the name of the appellant. It was an interim order of injunction made on 19/1/07, pages 536 – 558 of the record of proceedings.

INEC in exh. M appreciated that the matter was subjudice and declined to take any step in the substitution of the candidate.

Exh. L disclosed as the explanation for the substitution, that the name of the appellant earlier submitted was made in error. This therefore calls for the interpretation of section 34(2) particularly the words cogent and verifiable and that the change must be by way of application.

The word shall makes the provision mandatory or word of command. Reference was made to cases –

Bamaiyi v. A.-G., Federation (2001) 12 NWLR (Pt. 727) pg. 468 at 497; Nnonye v. Anyichie (2005) 2 NWLR (Pt. 910) pg. 623 at pg.649.

The learned senior counsel for the appellant advanced the definition for the word cogent. He submitted that –

According to Chambers Dictionary, New Edition – ‘Cogent’ is defined as powerful or convincing, “Going by Oxford Dictionary, Sixth Edition – ‘Cogent’ means strongly mid clearly expressed so as

to influence what people belief Relying on Oxford Dictionary, the appellant gave the meaning of verifiable as “To check that something is true and to confirm”

He argued that the words cogent and verifiable are to be read conjunctively. The learned senior counsel made reference to what the learned trial Judge said in her judgment that in the interpretation of legislations – they must be accorded their natural meaning.

The learned senior counsel contended that with the submission of the appellant’s name to INEC a vested right has accrued which is justiciable. He buttressed same with cases –

Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) pg. 187;

Afolabi v. Gov. of Oyo State (1985) 2 NWLR (Pt. 9) pg. 734 at 755.

This court is urged to construe section 31(2) of the 2006 Electoral Act in a way that would remove the mischief of the past.

Learned senior counsel referred the court to cases –

U.T.B. v. Koleosho (2006) 18 NWLR (Pt. 1010) pg. 1;

Ifezue v. Mbadugha (1984) 1 SC pg. 74; (1984) 1 SCNLR 427;

Halsburys Laws of England, 1st Edition, Vol. 44, para. 734 and para. 1415.

The learned senior counsel argued and submitted on issue two that pages 543 – 546 of the record would clear the air that reliefs 2 – 9 were properly endorsed and not abandoned. The court was urged to allow the appeal and to hold that there should be no substitution of the appellant’s name sent to INEC.

Mr. Bala for the 1st respondent addressed the court on the purport of sections 32, 34(1) and (2) of the Electoral Act, 2006. He submitted that section 34(1) and (2) injects a new provision fundamentally different, legally and politically. It asks for cogent and verifiable reasons before any substitution can be effected so as to curb the lawlessness that marked the substitution of candidates in the 2003 elections. Section 34(1) and (2) are to be read together while section 34(3) serves as the sanction.

Mr. Bala in drawing an analogy between section 23 of the 2002 Electoral Act and section 34(1) and (2) of the 2007 Electoral Act referred to cases such as follows –

Jang v. INEC (2004) 12 NWLR (Pt. 886) pg. 46;

Okon v. Bob (2004) 1 NWLR (Pt. 854) pg. 378;

Uba v. Ukachukwu (2004) 10 NWLR (Pt. 881) pg. 224;

Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) pg. 810.

Dr. Izinyon senior counsel for the 2nd respondent in his submission relied on the documents exhs. K, L, L1, N and F in the interpretation of section 34(1) and (2) of the Electoral Act, 2006.

Exh. K is dated 18/1/07 and exhs. L, L1 dated 2/2/07. This court is urged to discountenance any argument on the non-existence of these documents.

Exh. F was forwarded to INEC and this was followed by exh. K. Exh. K was written by people with no legal training and to them what is contained in the letter amounts to substitution. INEC did not react to the letter or mention the confusion raised by the letter. Going by either exh. K or L the request for substitution was made by the party within time. Exhs. K, L and L1 complied with section 34(1) and (2) as to stipulation of time. Exhs. K, L and L1 were admitted as exhibits with the consent of the parties. The court cannot invoke section 91(3) of Evidence Act which is now belated.

The position of the appellant and the candidates sponsored is now as reflected in exh L. Exh H was submitted to the 1st respondent in error. That kind of error can meet the interpretation of cogent and verifiable, learned counsel argued.

The questions which remain to be answered according to the learned senior counsel are –

(a) What is the sanction for non-compliance to this order?

(b) Is the provision mandatory or directory?

It is not in all cases that the word shall appears, that mandatory meaning would be read to it. The learned senior counsel described section 34(2) as cosmetic, bare and barren while the analogy drawn with section 258(1) of the 1999 Constitution is not in pari material with section 34 of the Electoral Act. Reference was made to cases on the list of authorities submitted by learned senior counsel –

Adebusuyi v. Oduyoye (2004) 1 NWLR (Pt. 854) pg. 406

Jang v. INEC (2004) 12 NWLR (Pt. 886) pg. 46

Rimi v. INEC (2005) 6 NWLR (Pt. 920) pg. 56

Osakwe v. INEC (2005) 13 NWLR (Pt. 942) pg. 442.

The learned senior counsel for the 1st respondent submitted further that in the interpretation of statutes court must not read into them words not intended by the legislature – while it is the duty of the legislature under the Constitution to promulgate laws to save a situation, while the courts are not expected to usurp the duties of the legislature but simply to assume the role of interpretation of statutes.

The court should resist going into the voyage of interpreting section 34(1) and (2) of the Electoral Act, 2006. Any legal right accrued to the appellant through exh. F is subject to the directives of the party. It is an intra-party matter. Court is urged to dismiss the appeal. He made reference to cases 13 – 25 on the list of authorities submitted in support of this appeal – E

Ojokolobo v. Alamu (1987) 7 SCNJ 98 at pg. 122; (1987) 3 NWLR (Pt. 61) 377

Seaford Court Estates Ltd. v. Asher (1949) All S.R. pg. 155 at pg. 164; (1949) 2 KB 481

Mayor & St Mellers RDC v. Newport Corporation (1951) 2 All NLR ER pg. 839 at pg. 841

Deport Steels Ltd. v. Sirs & Ors. (1980) 1 All ER pg. 529 L.S.D.PC. v. Adeyemi-Bero (2005) 8 NWLR (Pt. 927) pg. 330 at pg. 357

A-G., Federation v. Sode (1990) 1 NWLR (Pt.128) pg. 500 at pg. 545

Agwuna v. A-G., Fed. (1995) 5 NWLR (Pt. 396) pg. 418 at 428

Tonimas Nig. Ltd. V. Clzigbll (2001) 15 NWLR (Pt. 736) pg. 259

I.B.W.A Ltd. v. Imano (Nig.) Ltd. (1988) 7 SCNJ 326 at 335; (1988) 3 NWLR (Pt. 85) 633

Anyakora v. Obiakor (1990) 2 NWLR (Pt. 130) at pg. 52

Ibori v. Agbi (2004) 6 NWLR (Pt. 868) pg. 78.

In arguing the cross-appeal the learned senior counsel for cross-appellant Engineer Charles Ugwu raised the issue of jurisdiction of the lower court based on the 1st defendant in the matter – INEC being an agency of the Federal Government despite the subject-matter of the suit. The plaintiffs claim determines the jurisdiction of court.

The matter before the Federal High Court relates to the nomination and sponsoring of a candidate of a political party which the Federal High Court lacks jurisdiction to entertain. The cause of action is non-justiciable as it is within the issue of domestic affairs of a party. The claim of the appellant is predicated on the fact that he was the one duly sponsored by the 3rd respondent. This being an intra-party matter the court should have disqualified herself from adjudicating on the matter. Even the lower court in her findings came to the conclusion that the power to nominate or substitute still belongs to the party. Exh K is a document within the confines of the Act despite the findings of the learned trial Judge that she could not give the document a name. The document was meant for the necessary action of INEC. The learned senior counsel urged this court to allow the cross-appeal.

Reference was made to the following cases –

Onuoha v. Okafor (1983) 2 SCNLR pg. 244

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

Jang v. Dariye (2003) 15 NWLR (Pt. 843) pg. 446

Ogbeide v. Osula (2004) 12 NWLR (Pt. 886) pg. 86

Chief Gadzama, SAN – senior counsel for the 3rd respondent PDP supported the judgment of the lower court. The court cannot through its decision make a choice of candidate for any party. Nomination of candidate by a party is strings of events starting from selection to time of election. By the 2006 Electoral Act a party can substitute its candidate within 60 days before the election prior to the 13th of February and by section 34(3) you can change on the event of death or court order. The learned senior counsel urged this court to hold that section 91 of the Evidence Act does not apply here while the doctrine of lis pendes comes into operation after a party has succeeded in a case. Section 34(2) of the 2006 Electoral Act has no standard interpretation for the words cogent and verifiable.

Learned senior counsel for the appellant, Prince Fagbemi – In his reply on point of law drew a distinction between admissibility of a document and the weight to be attached to such document. Exhs. K, L and L1 were admitted by consent of counsel – the court has to determine their probative value.

Reference was made to the cases –

Alao v. Akano (2005) 11 NWLR (Pt. 935) pg. 160 at pg. 175

Folaranmi v. Abraham (2004) 10 NWLR (Pt. 881) pg. 434 at pgs. 448 – 449

Ojugbele v. Lamidi 1999 10 NWLR (Pt. 621) pg. 167 at pgs. 171-172

Where there are two enactments on an issue the latter in time takes precedence.

A-.G., Anambra State v. A.-G., Federation (1993) 6 NWLR (Pt. 302) pg. 692

By way of reply to the cross-appeal the learned senior counsel to the cross-appeal/1st respondent cited the locus classicus on the issue for determination in the cross-appeal as the case of Onuoha v. Okafor (1983) 2 SCNLR pg. 244. He went further to argue that provisions of the law cannot be a matter for window dressing. Section 34 of the Electoral Act 2006 is beyond the scope of intra-party affair. Exh. K cannot be placed and the purpose why it was written cannot be ascertained. We cannot regard any reason as cogent as that will be an assault on the law.

I have painstakingly considered the illuminating submission of all learned senior counsel in this appeal. It has made the duty of the counsel cumbersome. The issue raised for determination is to my mind straightforward and within narrow limits. The core issue for determination in the main appeal hinged on the position of law on the issue of substitution of a party for an elective office in the forth-coming 2007 elections as embodied in section 34 of the 2006 Electoral Act. It is therefore imperative to emphasize at this stage that the purpose and intention of the lawmakers of the Electoral Act at any point in time is to achieve a free and fair election, hence the 2006 Electoral Act and 2007 Election cannot be an exception.

Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) pg. 241

The first issue formulated by the appellant raised the issue whether the learned trial Judge was right in holding that the 3rd respondent had rightly substituted the name of the appellant with that of the 2nd respondent as their gubernatorial candidate for the April 2007 elections in Imo State?

Section 34 of the Electoral Act, 2006 is a new provision inserted to replace section 23 of the Electoral Act, 2002. According to Mr. Bala learned counsel for the 1st respondent INEC, submitted that section 34(1) and (2) are meant to inject a new provision fundamentally different, legally and politically into the Electoral Act. It requests for cogent and verifiable reasons before any substitution can be effected so as to curb the lawlessness that eroded the substitution of candidates in the 2003 elections.

Section 34(1), (2) and (3) of the Electoral Act, 2006 reads 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.

Section 34(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.

Section 34(3) Except in the case of death there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.

The learned trial Judge placed reliance on the exhibits tendered during trial particularly:

Exh. E – PDP result of gubernatorial election primaries 2006/2007.

Exh. F – PDP list of candidates for gubernatorial elections. Exh. K – Forwarding of PDP Governorship candidate and Deputy Imo State dated 18th January, 2007.

For the avoidance of doubt and sake of emphasis the learned trial Judge though concluded that exh. K by which the 3rd respondent PDP asked for a substitution of the name of the appellant with that of the 2nd respondent was vague and nebulous – she replaced it with exhs. L and LL1, in which the reason for the substitution applied for was explained as error. The learned trial Judge thereupon concluded that:

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

The sum total of the above according to the learned trial Judge is that the 3rd respondent the party had given a reason for the substitution and the duty of verification lies with INEC. The learned trial Judge however appreciated that a political party has the power to change its candidate in compliance with the laid down procedure.

It is noteworthy that in exh. M the letter issued to PDP by INEC, the latter waited for the decision of the court in order to take the necessary action under section 34(2) of the Electoral Act, 2006. This takes me to the mother of all posers in the circumstance of this appeal-

(a) What was the intendment of the law makers in putting section 34(1), (2) and (3) into the 2006 Electoral Act?

(b) What is the yardstick for implementation of the section 34(2)

(c) Is it subject to the interpretation of court?

(d) Has the section removed the old stigma attached to similar sections particularly section 23 of the 2002 Act that a pre-election matter is a political question and consequently non-justiciable?

(e) If the party applies to substitute, and offers a reason, and INEC is the organ to verify, what are the laid down procedure for such verification?

(f) What is the stake of the candidate affected? Is he or she not entitled to degree of hearing in taking a major decision which would affect his interest?

In our democratic system of government the 1999 Constitution section 6(6) vests the adjudicatory role on the judiciary. Interpretation of statute is an indispensable aspect of adjudication. It is not unusual to be guided or persuaded by historical facts culminating into the promulgation of certain laws in their interpretation for the comprehension of their subject-matter. This has followed the footsteps of the legislators who in their role as lawmakers have been guided by history of past events in promulgating laws to correct the mischief meant to be cured by such legislation.

The court cannot but take judicial notice, informed by the plethora of authorities in our law reports on how the processes of sponsorship, nomination and substitution of candidates were abused by indiscriminate and arbitrary changes in the past electoral exercise. I am almost sure that section 31 was promulgated and inserted into the 2006 Electoral Act to curb the excesses of political parties. This is a welcome change as we cannot continue to play hanky-panky in our electoral process. Is section 34 of the Electoral Act, 2006 justiciable or non-justiciable? My answer is that it is justiciable. There must be a check on whether the laid down procedure is followed in the process of substitution of a candidate, at the instance of the person adversely affected. INEC and the party who both have roles to play under that section cannot continue to be a Judge in their own cause. Section 34(2) must be under judicial surveillance. I hold that the learned trial Judge was right in looking into the letters exhs. L-L1 and their applicability in the circumstance of the case.

Since I have pronounced that the matter is justiciable at the instance of the candidate affected who all other things being equal is not disqualified under the electoral law to contest an election particularly when he was hitherto nominated by the party and all information about him were already forwarded to INEC. Interpretation in the legal parlance means ascertainment of meaning.

The objective of any interpretation is to discover the intention of the lawmaker which is deducible from the language used. In the performance of their duty of interpretation the courts are enjoined to give adequate consideration to the words used. Once the words used are straightforward and unambiguous the court will give a literal interpretation to them. In other words the meaning of a legislation must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained as to what is just and expedient. In the interpretation of statutes which encroach on the rights of the subject – whether tangible or intangible, whether as regards person or property, they are construed as penal laws fortissimo contra proferentes that is strictly in favour of the subject – particularly any statute which imposes a disability ought to be interpreted strictly.

The courts are however mindful of their position as courts of law and will not in the course of interpretation venture into re-writing the law as a result of which the intention of the lawmaker is thrown overboard.

Adejumo v. Ministry Governor, Lagos State (1972) 3 SC pg. 45

Awuse v. Odili (2003) 18 NWLR (Pt.851) pg. 116

Awolowo v. Shagari (1979) 6-9 SC 51

Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) pg. 116

Aqua Ltd. v. Ondo State Sport Council (1988) 4 NWLR (Pt.91) pg. 622

Bulzari v. Obasanjo (2005) 2 NWLR (Pt. 910) pg. 241

Okotie-Eboh v. Manager (2004) 18 NWLR (Pt. 905) pg. 242

Oloyo v. Alegbe (1983) 2 SCNLR 35

As at the time the appellant instituted an action in court and going by the exhibits available

(i) D – PDP Provisional Clearance Certificate dated 7/12/06.

(ii) E – PDP result of gubernatorial election primaries 2006/2007 Imo State.

(iii) F – PDP list of candidates for gubernatorial elections in all the States

(iv) G – INEC form for 2007 elections for Governor in Imo State.

(v) I – Submission of names of candidates by a political party 2007 governorship elections.

(vi) Exh. J – Acknowledgement form by INEC dated the 15th of December, 2006.

The appellant had effectively complied with the provisions of section 32 of the Electoral Act, and scaled the hurdle of nomination and sponsorship by his political party – the PDP 3rd respondent in this appeal.

The 3rd respondent thereafter issued exhs. K, L – L1 and N.

Exh. K reads:

January 18,2007

Professor Maurice Iwu

Chairman

INEC

Abuja

Forwarding of PDP Governorship Candidate and his Deputy in Imo State are presented as follows: –

(1) Chief Charles Chukwuemeka Ugwu

(2) Col. Lambert Ogbonna Iheanacho (Rtd.)

This is for your information and necessary action.

Sgn. Sgn

National Chairman National Secretary

On February 2nd, 2007 the 3rd respondent wrote another letter meant to be a re-confirmation of the letter issued on the 18th of January, 2007 it reads:

Professor Maurice Iwu

Chairman

INEC

Abuja

Re-Forwarding of PDP Governorship Candidate and his Deputy – Imo State our letter 18th of January refers please.

This is to confirm POP position that Chief Charles Chukwuemeka Ugwu and Co. Lambert Ogbonna Iheanacho (Rtd.) are POP Governorship and Deputy Governorship candidates for Imo State.

Chief Charles Chukwuemeka Ugwu substitutes Sen. Ifeanyi Godwin Ararume whose name was submitted in error.

This is for your necessary action.

Sign Sgn

National Chairman National Secretary

These letters are meant to substitute Chief Charles Ugwu 2nd respondent for the appellant as the governorship candidate Imo State. The issuance of the letters exhs. K, L and L1 was challenged on the basis of non-compliance with section 34(1) and (2) of the Electoral Act, 2006 in their contents and form.

(2) For being written when the matter was sub judice, The appellant filed his suit on the 7th February, 2007 vide pages 262 – 292 of the record.

(3) For issuing the letter when there was a subsisting interim order of the lower court restraining the 3rd respondent from taking any further steps in the substitution of Imo State gubernatorial candidate for the 2007 election.

I have examined the provisions of section 34(1) as to stipulation of time to effect a change of candidate the words are straight forward and unambiguous it shall be accorded its literal meaning.

Section 34(2) reads –

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

I have searched the Electoral Act, 2006 particularly the interpretation section there are no definitions for cogent and verifiable reasons. No yardstick for implementation.

They are subject to the discretion of the party substituting and INEC.

Laudable as section 34 of the Electoral Act, 2006 appears there are many loopholes. It can also be subject to arbitrary use or be used as a rubber stamp. Unless section 34 is properly monitored it shall not give effect to the intendment of the lawmakers. Where the provisions of a statute are ambiguous the court is bound to adopt a construction which is just and reasonable –

Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) pg. 241

Moreover a person whose right and interest are likely to be affected must be heard before the decision is taken against him so as not to violate his constitutional right under section 36(1) of the 1999 Constitution.

On the definition of the word cogent I find that offered by Oxford Dictionary, 6th Edition as adequately appropriate – It says “strongly and clearly expressed so as to influence what people belief’ Blacks Law Dictionary, 8th Edition defines cogent as compelling or convincing.

Blacks Law Dictionary, 8th Edition defines the words verify as

(1) “To prove to be true, to confirm or establish the truth or truthfulness of, to authenticate

(2) To confirm or substantiate by oath or affidavit to swear to the truth”.

The operative words in the three subsections is shall has a force of compulsion or coercion – a mandatory or absolute provision.

The combined reading of the words application, cogent and verifiable reasons connote an element of good faith shown by the party substantiated on oath or affidavit.

INEC must be able to ascertain facts deposed to from the surrounding circumstance of the case based on the document at its disposal

If this court accepts that the name of the appellant was submitted in error as a cogent reason what about the aspect of verification which is the ascertainment of the truth of the matter. This is a power which INEC must exercise taking into consideration the surrounding circumstance of the case, particularly exhs. D, E, F and the Constitution of the party

I shall compare and contrast section 23 of the 2002 of Electoral Act and section 34( 1) and (2) of the 2006 Electoral Act.

Section 23 of the 2002 Electoral Act provides as follows:-

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

The apparent difference is that section 34(2) stipulates 60 days and the substitution must be supported with cogent and verifiable reasons. The conclusion of court on this issue is only meant to be persuasive on INEC, and to give INEC the guideline as to what line to tow in its supervisory role under section 34(2).

Regardless of the fact that exhs. K, L and L1 were admitted by consent of parties – the documents suffered two major procedural defects which should have affected their probative value.

(1) They were made when this matter was sub judice or in anticipation of the suit.

(2) They were made in disobedience of an interim order of court.

Obviously the documents should not have been afforded any probative value by the lower court. Regardless of the contemnor’s constitution right to be heard, the court may refuse him hearing until he purges himself of the contempt. A contemnor may be heard when the order is being challenged on the ground that the court making the order lacks jurisdiction.

In this appeal the 2nd and 3rd respondents challenged the issue of jurisdiction of the lower court.

Isiyaku v. Master (2003) 5 NWLR (Pt. 814) pg. 443

Mobil Oil (Nig.) Ltd. v. Assail (1995) 8 NWLR (Pt. 412) pg.129.

The appellant made reference to the doctrine of lis pendens and urged this court to adopt or draw an analogy to suit the situation of this case. The doctrine of lis pendens prevents effective transfer of rights in any property which is the subject matter of an action pending in court during the Currency in court of that action. In order for the doctrine to be operative a party has the burden of showing –

(a) That there is in fact an alienating pendente lite.

(b) That there has been a successful termination of the pending suit at the time the alienation is made.

(c) That the alienation pendente lite has prejudiced or affected the other party.

The foregoing must co-exist in every case in which the doctrine has been invoked. As rightly observed by counsel for the 3rd respondent there is no termination of the suit here. Exh. M also shows that INEC has not effected any substitution or taken any steps as the body appreciated that the matter is sub judice.

By virtue of section 91(3) of the Evidence Act any document made in anticipation of a suit is inadmissible particularly exhs. L and L1 in this appeal. The court should not have considered them.

Dune v. Oladejo (2004) 17 NWLR (Pt. 903) pg. 621

Ogundiani v. Araba (1978) 6-7 pg. 55

Oronti v. Onigbanjo (2004) 17 NWLR (Pt. 903) pg. 601

Ogunsola v. N.I.C.O.N. (1991) 4 NWLR (Pt. 362) pg.771

Osizinowo v. NBN Ltd. (1998) 11 NWLR (Pt.574) pg.408

Alakija v. Abdullahi (1998) 6 NWLR (Pt. 552) pg. 1

Before the 2006 Electoral Act the right to sponsor a candidate is not a legal right but a domestic right of a party which cannot be questioned in a court of law. The political party has a discretion in the matter. Now by virtue of section 34(1) and (2) of the Electoral Act the unfettered discretion of the party to change or substitute a candidate has been curtailed by

(1) Taking steps not later than sixty days to the election.

(2) Application for substitution which must reveal cogent and verifiable reasons.

Section 32 of the Electoral Act, 2006 gives every political party 120 days to submit the list of the candidates the party proposes to sponsor at the elections to INEC.

By virtue of section 32(4) and (5) any candidate who has given false affidavit information shall be disqualified from contesting by an order of the High Court.

Under section 34(1) and (2) a political party has the right to substitute any candidate sponsored for cogent and verifiable reasons sixty days before the election. Thirty days to the election the party shall display the names of all candidates standing nominated.

A candidate therefore has the preliminary hurdle of disqualification under section 32(4) and (5) or substitution under section 34(1) and (2) – sixty days to the election, or withdrawal through his political party to be done 70 days to the election.

The letter of INEC to the 3rd respondent exh. M refers to the appellant as the nominee gubernatorial candidate for Imo State.

Nomination is the act of suggesting or proposing a person by name to an election body as a candidate for an elective office. This forms part of the preliminary matters before the actual election is conducted.

Tsoho v. Yahaya (1999) 4 NWLR (Pt. 600) pg. 657

Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) pg. 242

Rimi v. INEC (2005) 6 NWLR (Pt. 920) pg.56

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

Onuoha v. Okafor (1983) 2 SCNLR pg. 244

The nomination and sponsorship of candidates by political parties to contest elections are considered to be an intra party or domestic dispute to be determined by the rules and Constitution of the said party. It is not for the court to interfere with a right vested in a political party by imposing a candidate on the party. The rationale behind the principle of law as pronounced in the case of Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) page 310 by the Supreme Court is that since persons have freely given their consent to be bound by rules and regulations of a political party they should be left alone to be governed by such rules and regulations.

The court is only to be involved in the dispute as to the interpretation of the section 34 so as to ensure fairness and justice in the circumstance of any particular case.

The learned trial Judge in the exercise of her discretion held:

“In the instant case the 3rd defendant submitted the name of the plaintiff as its governorship candidate informed INEC of its change of candidate and gave INEC a reason for the change. It is left for INEC to verify the reason or not.”

This is not the purport of section 34(2) of the Electoral Act, 2006. Section 34(2) demands that any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons. The section does not welcome any form of non-chalance on the part of INEC. The reasons given for the substitution are supposed to be cogent and verifiable read conjunctively. A court of law is without power to import into the meaning of a word clause or section of a statute something that it does not say.

Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 886) pg. 169

Moreover that pronouncement is not a judicial or judicious exercise of the discretion of the lower court in the circumstance of the case. I shall not hesitate to conclude that the learned trial Judge failed to consider all the aspects of section 34(1) and (2) of the Electoral Act and same has not met the justice of this case. I hereby allow the appeal. Judgment of the lower court is hereby set aside.

No order as to costs.

Cross-Appeal:

In the cross-appeal the learned senior counsel for the 2nd respondent Dr. A. Izinyon raised two issues for determination of this court –

(1) Whether the Federal High Court has jurisdiction in this case in view of the 1st respondent being a Federal Government Agency and not going by the subject matter of a suit.

(2) Whether the suit is non-justiciable as the suit borders on the nomination and sponsorship of a political party which has exclusive right to nominate and change their candidate.

Issue One

The submission of the cross-appellant is that the learned trial Judge was wrong to have entertained the suit because the 1st respondent INEC is an agency of the Federal Government whereas the claim before the court revolves round a political matter which is nomination and sponsorship of a candidate of a political party to which the Federal High Court lacks jurisdiction.

The learned counsel for the cross-respondent replied that the thrust of the suit before the trial court was the interpretation of section 34(1) and (2) and the effect on changes of candidate by political parties. Where the issue of jurisdiction is challenged the court is obliged to inquire as a primary matter into the issue of jurisdiction because it is upon the competence of the suit that rests the issue of jurisdiction of court to entertain it.

Madukolu v. Nkemdilim (1962) 2 SCNLR 341

Okon v. Bob (2004) 1 NWLR (Pt. 854) pg. 378

NEC v. Nzeribe (1991) 5 NWLR (Pt. 192) pg. 458

At the lower court the appellant challenged the interpretation of section 34(1) and (2) of the Electoral Act, 2006 as it affects his nomination as Imo State gubernatorial candidate in the 2007 Election.

Section 34( 1) of the Electoral Act gives the party the right to change its candidate 60 days to the election. The 3rd respondent has complied. It is the duty of INEC to effect this change if made within the stipulated time, where cogent and verifiable reasons are given.

The issue of nomination, sponsorship and substitution of candidate precedes the election and are thereby pre-election issues. The political party has the right to change its candidate before the election in the exercise of that right. A court of law lacks jurisdiction to adjudicate on intra-party contest or nomination of candidate. No party member has a legal right to the nomination. There is no corresponding obligation on the political party so as to pave way for the powers of the court to be invoked under section 6 of the Constitution. In effect a court of law has no jurisdiction over the issue of determination of intra-party political matters. The issue of primaries, selection of candidates to contest an election at any given time is the preserve of the political parties exclusively outside the province or competence of courts. Court shall not impose a candidate on a political party.

Onuoha v. Okafor (1983) 2 SCNLR 244

Chukwu v. Icheonwo (1999) 4 NWLR (Pt. 600) pg. 587

Owuru v. INEC (1999) 10 NWLR (Pt. 622) pg. 21

Adebusulie v. Oduyoye (2004) 1 NWLR (Pt. 854) pg. 406

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

Ibrahim v. Gaye (2002) 13 NWLR (Pt. 784) pg. 267

Jang v. INEC (2004) 12 NWLR (Pt. 886) pg. 46

Tsoho v. Yahaya (1999) 4 NWLR (Pt. 600) pg. 657

Rimi v. INEC (2005) 6 NWLR (Pt. 920) pg. 56

That position or stand has now changed with the provision of section 31 (1) and (2) of the Electoral Act which has created and placed an extra duty on INEC in its supervisory role over the affairs of political parties. Cogent and verifiable reasons are weapons to be employed by INEC when taking a decision to substitute a candidate. The procedure engaged can be challenged in court for interpretation of the section.

The learned senior counsel for the 2nd and 3rd respondents are of the opinion that the new section 34 is only cosmetic in con, bare and barren devoid of any legal sanction. I do not agree with them and I regard that impression as misconstruing the intention of the lawmakers in promulgating section 34. I however agree that the lawmakers must go a step further in the framing of the provision particularly in the area of implementation and sanction for noncompliance, or once it is established that a candidate is not disqualified under the Constitution or the Electoral Law, and if he has won in the party primaries his or her nomination should not be subject of any substitution. Any provision for substitution should be deleted in the Electoral Act. A political party must not be allowed to approbate and reprobate. These are only suggestions.

The cross-appeal is dismissed. No order as to costs.

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Other Citations: (2007)LCN/2281(CA)