Legalpedia Citation: (2015-11) Legalpedia 13696 (CA)

In the Court of Appeal

HOLDEN AT LAGOS, NIGERIA

Thu Nov 12, 2015

Suit Number: CA/L/EP/HR/1003/2015

CORAM

SAMUEL CHUKWUDUMEBI OSEJI JCA

ABIMBOLA .O. OBASEKI-ADEJUMO JCA

JAMILU YAMMAMA TUKUR JCA

PARTIES

HON. BUSARI AYINDE

2. PEOPLES’ DEMOCRATIC PARTY (PDP)

APPELLANTS

1. MR. OLUFEMI BANDELE ADEBANJO

2. ALL PROGRESSIVES CONGRESS (APC)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

RESPONDENTS

AREA(S) OF LAW

APPEALS, CIVIL PROCEDURAL LAW, RULES OF STATUTORY INTERPRETATION, ELECTORAL LAW, JUDGMENT, LITERAL INTERPRETATION OF TERMS, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

his is an appeal against the judgment of the National and State Houses of Assembly Tribunal (Panel I) sitting at Ikeja, Lagos State. The 1st Appellant was a candidate of the 2nd Appellant, Peoples Democratic Party (PDP) for the election conducted on the 28th day of March, 2015 as member to represent ALIMOSHO Federal Constituency in the House of Representatives. The 1st Respondent was also the candidate of the 2nd Respondent (ALL PROGRESSIVE CONGRESS (APC) in the same election which was conducted by the 3rd Respondent on the said 28-3-2015. Prior to the election, the 2nd Respondent, by a letter informed the 3rd Respondent (Independent National Electoral Commission) (INEC) that it has scheduled the party’s primary elections particularly for the House of Representatives, for Monday 24th November 2014. Subsequently, the 2nd Respondent by another letter wrote to inform the 3rd Respondent that it has rescheduled dates for its primaries, particularly for the House of Representatives to 7th December 2014. On the said 7th December 2014, the primaries for the House of Representatives were held by the 2nd Respondent and the 1st Respondent won and was nominated as the 2nd Respondent’s candidate to contest the 28-3-2015 election into the House of Representative Constituency of Lagos State.

Upon the conclusion of the said election, the 1st Respondent was declared winner. The Appellants were not satisfied with the outcome of the said election and consequently filed a petition before the National and State Houses of Assembly Tribunal. At the conclusion of trial, the Tribunal delivered its judgment on the 15-9-2015 wherein the Appellants’ petition was dismissed. The Appellants were dissatisfied with the said judgment and consequently filed a Notice of Appeal to this instant Court.

HELD

Appeal dismissed.

ISSUES

1.    Whether the Tribunal was right when it held that the 2nd Respondent complied with the provision of Section 85(1) of the Act, 2010(as amended) (Grounds 2, 3, 5, 6, 8 and 10)?

Whether the Tribunal was right when it held that the provision of Section 85(1) of the Electoral Act 2010(as amended) is to enable INEC attend and monitor the primaries of political parties in order to perform its functions under Section 86(1). (Grounds 1, 4, 7, and 9)?

RATIONES DECIDENDI

JUDICIAL INTERPRETATION – THE JUDICIAL INTERPRETATION OF SECTION 85 OF THE ELECTORAL ACT 2010 (AS AMENDED)

Section 85 of the Electoral Act 2010 (as amended) provides as follows:-

85. (1) Every registered political party shall give the Commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members or its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under this Act.

(2) The Commission may with or without prior notice to the political party monitor and attend any convention, congress, conference or meeting which is convened by a political party for the purpose of:-

(a) Electing members of its executive committees or other governing bodies;

(b) Nominating candidates for an election at any level;

(c) Approving a merger with any other registered political party.

(3) The election of members of the executive committee or other governing body of a political party, including the election to a vacant potion in any of the aforesaid bodies shall be conducted in a democratic manner and allowing for all members of the party or duly elected delegate to vote in support of a candidate of their choice.

(4)  Notice of any congress, conference or meeting for the purpose of nominating candidates for Area Council elections shall be given to the commission at least 21 days before such congress, conference or meeting.

The provisions of Section 85 of the Electoral Act as above set out has been the subject of judicial interpretation in a number of cases and I must add here that subsection (1) is very clear and unambiguous to the effect that every registered political party shall give the commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under the Act. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

JUDICIAL INTERPRETATION – WHETHER OR NOT THE PROVISIONS OF SECTION 85 (1) OF THE ELECTORAL ACT 2010 (AS AMENDED) CONNOTES MANDATORINESS

The word “shall” as used in the provision connotes imperativeness or mandatoriness in implementation and does not give room for discretion neither did it provide for any other option see OLANIYAN VS OYEWOLE (2008) SNWLR (PT 1079) 114. In other words the notice to the Independent National Electoral Commission (INEC) by any political party intending to hold any convention, congress, or meeting convened for the purpose of electing members of its executive committee or other governing bodies or nominating candidates for any of the elective offices specifies under the Elective Act shall be not less than 21 days and accordingly any activity carried out, pursuant thereto without the requisite notice to INEC shall be a nullity for non compliance with the provisions of Section 85(1) of the Electoral Act. See the case of ATAI VS DANGANA (2012) INEC LAW REPORT (VOL. 1) Page 523 where this court per EJEMBI EKO JCA held inter alia at page 541-542 that:-

“The provisions of Section 85(1) of the Electoral Act 2010 as amended, have not been inserted for fun. They are imperative, considering the object the Act intended to secure. In the words of TOBI JSC, in UGWU VS ARARUME Supra at Page 449, “it is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of the political party to dictate the pace in any way it likes, without any corresponding exercise of due process.”

The ultimate mischief the lawmakers have inserted Section 85 into the Electoral Act, 2010 for is to curb the brigandage of the powerful within the political class. INEC as umpire general has been vested with the function of supervising and monitoring the process of internal democracy within the political parties.

At page 548 to 549 it was held per BADA JCA that:-

“Under Section 85(1) of the Electoral Act 2010(as amended) a registered political party like PDP shall give INEC at least 21 days notice of any convention, congress, conference, meeting convened for the purpose of electing or nominating candidates for any of the elective offices specified under the Electoral Act. See Section 87(4) (c) of the Electoral Act 2010(as amended). This provision is mandatory. And from the evidence before the Trial Tribunal. It is that the said 21 days was not given to INEC.

It is therefore my view that the primary election conducted on 28/1/2011 which culminated in the purported nomination of the 1st Respondent as PDP candidate for election to the office of Senator representing Kogi East Senatorial District was done in violation of Section 85 of the Electoral Act, 2010 as amended. The said primary election is therefore illegal.”

See also AMAECHI VS INEC (2008) 5 NWLR (PT 1080) 227 where the Supreme Court per OGUNTADE JSC held at page 296 that:-

“Under Section 85 of the electoral Act (2006). It is mandatory that political parties inform INEC of the date and time of holding a convention or congress summoned for the purpose of nominating candidates for any of the elective offices under the Electoral Act.”

The conclusion of the matter, from the above cited authorities is that the provision of Section 85(1) of the Electoral Act 2010 (as amended) imposes a mandatory duty on any political party seeking to organise a convention, meeting, conference or congress for the purpose of electing members or nominating candidates for any elective office specified in the Elective Act to give at least 21 days notice to the INEC for the purpose of the aforementioned gathering. Any such notice which is less than the prescribed minimum of 21 days renders any such meeting or gathering or anything done pursuant thereto a nullity for non compliance with the provisions  of Section 85(1) of the Electoral Act 2010(as amended). PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

INTERPRETATION OF STATUTES – WHERE THE WORDS OF A STATUTE ARE CLEAR AND UNAMBIGUOUS IT SHOULD BE INTERPRETED IN THE CONTEXT OF ITS ORDINARY AND NATURAL MEANING

The Section is very clear and unambiguous and needs no grammatical embellishment for the purpose of reading any other meaning into it by way of any contrary interpretation. The case of UGWU VS ARARUME cited Supra is quite apposite to the effect that where the words of a statutes are clear and unambiguous. It should be interpreted in the context of its ordinary and natural meaning. See also PDP VS INEC (2014) 17 NWLR (PT 1437) 525 at 558 where the Supreme Court in emphasising on this principle of interpretation of statutes held inter alia as follows:-

“The cardinal principle in the interpretation of statutes is that the meaning of statutes is that the meaning of statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal mile of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole.”

See also CPC VS INEC (2012) 1 NWLR (PT 1280) 106, A.G NASARAWA STATE VS A.G PLATEAU STATE (2012) 10 NWLR (PT 1309) 419; ANPP VS GONI (2012) 7 NWLR (PT 1298) 147. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

POLITICAL PARTY – WHETHER OR NOT A POLITICAL PARTY CAN PROCEED WITH CONVENTION, CONGRESS, MEETING, CONFERENCE UPON THE SATISFACTION OF THE ISSUANCE OF 21 DAYS NOTICE TO THE INEC

I need however state emphatically that I agree entirely with the submission of the Learned Counsel for the Appellants to the effect that by the provision of Section 85(2) of the Act, the attendance and observance of any convention, congress, conference or meeting by INEC is not a sine qua non to the validity of same but the adequacy of the requisite notice of the convention, congress, conference or meeting that determines validity of same. See AMAECHI VS INEC (Supra) ATAI VS DANGANA (Supra). Furthermore, once the statutory requirement of Section 85(1) is satisfied by the issuance of at least 21 days notice to the INEC a political party has the clear path to proceed with the convention, congress, meeting etc and do not have to be concerned whether or not the INEC attends given the provision of Section 85(2) which gives INEC the option whether or not to attend any such convention, congress or meeting by the use of the permissive word “may.” Therefore, the attendance of INEC to any meeting of a political party desirous and ideal does not validate any breach of provisions of Section 85 (1) of the Act as held by the Trial Tribunal. This is therefore an erroneous interpretation of the said provision and the venture into the unwarranted terrain of mischief rule of interpretation by the Trial Tribunal when the words are very clear and unambiguous constitutes an attempt to blend oil with water. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

DECISION OF COURT – WHERE A DECISION OF COURT IS RIGHT THE REASON GIVEN FOR HOLDING THAT DECISION IS IMMATERIAL

However, having reached a correct decision the reasons for the said correct decision will not alter the scenario because it is now trite law that where a decision of a court is right, the reason given for so holding is immaterial. See UBA LTD VS ACHOR (1990) 6 NWLR (PT 156) 254; DAIRO VS UBN PLC (2007) 16 NWLR (PT 1059) 99, in ARISA VS STATE (1988) NWLR (PT 83) 386, it was held by the Supreme Court that an appellate court is concerned primarily with the point whether a decision and not necessarily with whether the reasons for the decision are right or wrong. If the decision is right it will be upheld notwithstanding the fact that a wrong reason was given for the decision. See also ODUKWE VS OGUNBIYI (1998) 8 NWLR (PT 561) 339, JIKANTORO VS DANTORO (2004) 5 SCM 68. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

ISSUE – WHETHER OR NOT THE CONSIDERATION OF AN ISSUE IS ENOUGH TO DISPOSE OF AN APPEAL

Where an appellate court is of the view that the consideration of an issue is enough to dispose of an appeal, it is not under obligation to consider all the other issues formulated by the parties. See ANYADUBA VS NIGERIAN RENOUNED TRADING CO. LTD (1992) 5 NWLR (PT 234) 535 At 561; OKONJO VS NJOKANMA (1991) 7 NWLR (PT 202) 131; OKOTIE-EBOH VS MANGER (2004) 18 NWLR (PT 905) 242. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

RESCHEDULE – DEFINITION OF RESCHEDULE

The word “Reschedule” is defined by the English Dictionary as “To schedule again or at different time.” In Oxford Advanced Learner’s Dictionary 7th edition at page 1214 it is defined thus:- “to change the time at which something has been arranged to happen, especially so that it takes place later. Eg “The meeting has been rescheduled for next week.” This definition as simple as it is, I believe shuts up any further argument to the contrary as to the meaning of the word “Reschedule.”

APPEALS – WHETHER OR NOT IT IS NECESSARY ENGAGE IN ACADEMIC ISSUES HAVING RESOLVED THE MAIN THRUST OF AN APPEAL

Having Resolved issue two which is the main thrust of this appeal and having reached the decision that compliance with the provisions of Section 85(1) of the Electoral Act 2010 (as amended) is mandatory and having also concluded and held that the 1st and 2nd Respondents complied with the said provision of the Electoral Act. It will be an unnecessary exercise bordering on academics to engage in a further discourse on issue I. PER – SAMUEL CHUKWUDUMEBI OSEJI, JCA

CASES CITED

STATUTES REFERRED TO

Electoral Act 2010 (as amended)

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