CORAM

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John Inyang Okoro Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

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PARTIES

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1. CHIEF OKECHUKWU AMBROSE AHIWE

2. PEOPLES DEMOCRATIC PARTY (PDP)

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. DR. ALEX CHIOMA OTTI

3. LABOUR PARTY (LP)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants claim that the 2nd Respondent was not a member of the 3rd Respondent at the time of the election since his name was not contained in the Membership Register of the 3rd Respondent, which the 3rd Respondent failed to submit to the 1st Respondent 30 days before the conduct of its primary election. The Appellants assert that the 2nd Respondent was a governorship aspirant under the All Progressives Congress (APC) and participated in the Governorship primary election of that party on the 26/5/2023. Their case is that the 2nd Respondent defected to and joined the 3rd Respondent few days before the 3rd Respondent conducted its primary election on 8/6/2023. That unless the name of the 2nd Respondent was on the Membership Register submitted by the 3rd Respondent (Labour Party) to the 1st Respondent (INEC) 30 days before the holding of its primary election, the 3rd Respondent could not validly and lawfully sponsor the 2nd Respondent as its candidate for Abia State Governorship election.

On 18/3/2023, the Independent National Electoral Commission (INEC), the 1st Respondent, conducted an election for the Governorship seat of Abia State. On 22/3/2023, it declared the 2nd Respondent, who was sponsored by the 3rd Respondent, as the winner of the election. The 1st Appellant, sponsored by the 2nd Appellant came second. Dissatisfied with the outcome of the election, the Appellants on 11/4/2023 presented a petition challenging the return of the 2nd Respondent on the grounds that the 2nd respondent was not qualified, lacked majority of lawful votes cast at the election and due to corrupt practices and non-compliance with the provisions of the Electoral Act, 2022.

The Honourable Tribunal delivered a judgment dismissing the petition of the Appellants.

On appeal to the Court of Appeal, the lower Court dismissed the appeal.

Miffed, the Appellants have filed this appeal before the Apex Court.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1. Whether the lower Court was wrong to hold that the Appellants did not prove the issue of disqualification of the 2nd Respondent?

2. Whether the decision of the lower Court on the Matters of Pleadings, Evidence, and Formulation of Issues for Determination in an appeal are correct in law and not perverse?

3. Whether, in the particular circumstances of this case, the Appellants can be rightly said to have had a fair hearing and or a fair trial at the Honourable Tribunal?

 

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RATIONES DECIDENDI

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PARTY MEMBERS – CONDUCT OF COURTS TO ISSUES BETWEEN PARTY MEMBERS

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When family members fight, as in the case of party members, they can be settled within themselves or they go to Court by themselves, but it does not lie in the Appellants, who are strangers to their squabbles to interfere or go to Court on their behalf. Actually, the Courts will have no jurisdiction over the membership of a political party that has been fielded for general election except the issue of membership is within and internal. See ENANG VS ASUQUO (2023) LPELR 60042(SC), SANI V. GALADIMA (2023) LPELR 60183(SC), ONUBOGU V. ANAZONWU (2023) LPELR 60288(SC). – Per U. M. Abba-Aji, JSC

 

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GROUNDS OF APPEAL – WHERE NO ISSUES ARE DISTILLED FROM GROUNDS OF APPEAL

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Noticeable in the record, particularly page 9063, Vol. 6, is that the Appellants at the lower Court complained against the striking out of the evidence of PW1, PW16, PW17 and PW22. Nevertheless, this was bereft and not distilled in their issues for determination. Since no issues were distilled from the said grounds of appeal, they are deemed abandoned. It is trite that formulation of the issues must be circumscribed by the grounds of appeal and contains only such issues as have been raised. See Per KARIBI-WHYTE, JSC in ONYESOH V. NNEBEDUN & ORS (1992) LPELR-2742(SC) (pp. 16 PARAS. B). – Per U. M. Abba-Aji, JSC

 

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DOCUMENTS – WHETHER IT IS POSSIBLE FOR AN ORIGINAL DOCUMENT TO BE INADMISSIBLE

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The Appellants again attacked the ratio decidendi of the lower Court, stating that Exhibit P38 tendered by PW4, being the original counterpart copy of the result in Obingwa LGA, carries a higher probative value than Exhibit P188, being a certified true copy. It is possible for Exhibit P38 to be an original document but may be infected with the virus of inadmissibility. No matter how vital and potent a document or Exhibit may be, it must lose its power when rejected or rendered inadmissible. This was actually the case with Exhibit P38. It does not have the foundation to stand or be admitted by the Court, thus the lower Court was right to accord pride of place and more probative value to Exhibit P188, although a certified true copy. – Per U. M. Abba-Aji, JSC

 

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ELECTION PETITION – THE NATURE OF ELECTION PETITION – DUTY OF PARTIES TO AN ELECTION PETITION – CONDUCT OF COURTS IN ELECTION PETITIONS

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Election petition, being sui generis and time bound does not permit piecemeal filing and presentation of petition. Election petition is akin to going to war prepared and equipped with all your weapons and bullets ready for battle or shooting the opponent. All witnesses, whether subpoenaed or not, should have their statements and evidences ready before the petition is filed since there will not be time again to allow for such substantial amendments. This is in fact the intent and spirit in Section 285(5) of the 1999 Constitution (as amended) and Paragraph 4 (5), 1st Schedule to the Electoral Act, 2022. This Court in SC/CV/935/2023: ABUBAKAR ATIKU & ANOR V.I.N.E.C & OTHERS (unreported) delivered on 26/10/2023 settled on the incompetence and impropriety of a petitioner calling witnesses, by subpoena, whose written statements on oath did not accompany the petition. At page 81 of the judgment, it held among others that “a combined, reading of Section 285(5) of the Constitution shows that the time limit for the filing of written statement on oath of witnesses in election petition proceedings is 21 days from the date of declaration of the results due to the sui generis nature of election proceedings, amendment to the petition or calling of witnesses will not be entertained after the statutory time limit for the filing of the petition has expired. Thus, a petitioner cannot present his case in bits, otherwise the Respondents’ right to fair hearing will be breached”. – Per U. M. Abba-Aji, JSC

 

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COURTS – DUTY OF COURTS TO CONSIDER ALL APPLICATIONS OR MOTIONS – DUTY OF LAWYERS TO BRING APPLICATIONS OR MOTIONS TO THE ATTENTION OF THE COURT

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Although all applications or motions ought to be considered by the Court one way or the other, no matter how frivolous they may be, lawyers or parties must bring them to the attention of the Court, otherwise, they are considered abandoned, if not moved. – Per U. M. Abba-Aji, JSC

 

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SUBSTANTIAL COMPLIANCE – WHERE THE DOCTRINE OF SUBSTANTIAL COMPLIANCE WILL ARISE

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The doctrine of substantial compliance is that its consideration will only arise where the petitioners have succeeded in establishing substantial non-compliance with the principles of the Electoral Act etc or, in the alternative, substantial effect on the election result of any infraction of the said Act etc no matter how minuscule the transgression may be. See Per NWEZE, JSC in OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803(SC) (PP. 69 PARAS. B). – Per U. M. Abba-Aji, JSC

 

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SUBSTANTIAL COMPLIANCE – WHERE THE DOCTRINE OF SUBSTANTIAL COMPLIANCE WILL ARISE

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The doctrine of substantial compliance is that its consideration will only arise where the petitioners have succeeded in establishing substantial non-compliance with the principles of the Electoral Act etc or, in the alternative, substantial effect on the election result of any infraction of the said Act etc no matter how minuscule the transgression may be. See Per NWEZE, JSC in OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803(SC) (PP. 69 PARAS. B). – Per U. M. Abba-Aji, JSC

 

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ELECTION – QUALIFICATION FOR ELECTION TO THE OFFICE OF THE GOVERNOR

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The ratio of Oni v Oyebanji (2023) 13 NWLR (Pt 1902) 544, referred to by the Respondents, if applied to Issue Nos. 1 and 2 of the instant appeal, as it should be, leads to the conclusion that once a person satisfies the criteria prescribed in Section 177 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), such person becomes automatically qualified for election to the office of Governor. See also the cases of: Shinkafi v. Yari (2016) 7 NWLR (Pt 1511) 340; Jegede v. I.N.E.C. [2021] 14 NWLR (Pt 1797) 409.

Section 177(c) which provides that a person shall be qualified for election to the office of Governor of a State if he is a member of a political party and is sponsored by that political party, does not provide for consideration of how a political party arrives at the decision to sponsor a person as its candidate or the validity of the decision to sponsor or the validity of the sponsorship itself. The fact that a political party sponsored its member as its governorship candidate for the general election makes such a person automatically qualified for election to the office of Governor of the State. Any criterion not provided for in Section 177 or any factor not listed under Section 182 is not valid as a qualifying criterion under Section 177 or disqualifying factor under Section 182. See: A.P.P. v. Obaseki (2022) 13 NWLR (Pt 1846) 1; Jegede v INEC (2021) 14 NWLR (Pt 1797) 409; Faleke v I.N.E.C. (2016) 18 NWLR (Pt 1543) 61. – Per J. I. Okoro, JSC

 

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REGISTER OF VOTERS – WHETHER A CANDIDATE MAY ONLY QUALIFY AS SUCH IF HIS NAME WAS IN THE REGISTER OF VOTERS AT LEAST 30 DAYS BEFORE THE PRIMARY ELECTION

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There is no requirement of the 1999 CFRN (as altered) to the effect that a candidate may only qualify as such if his name was in the Register of Voters of the political party which sponsored him or her, at least thirty (30) days before the primary election. Being extraneous to the 1999 CFRN (as altered), it will amount to an atrocious violation of the Constitution for a Court to read the provision of Section 77 of the Electoral Act, 2022 into the Constitution and bend same to conform to Section 177 (c) of the 1999 CFRN (as altered). See AG ABIA v. AG FEDERATION (2002) 6 NWLR (PT. 763) 264 AT 368, ALLIED PEOPLES MOVEMENT v. INEC (2023) 9 NWLR (PT. 890) 419 AT 441.

There is no doubt that with respect to Section 77 (2) and (3), all that it required was for a political party to “maintain a register of its members in both hard and soft copy”. Subsection 3 further requires the political party to “…make such register available to the commission not later than 30 days before the date fixed for the party primaries, congresses or convention”. The section did not provide much as the Appellants may wish that it is so, that only those whose names are on the register within 30 days to the primaries, that may qualify to contest the primaries. Sadly, it is this non-existent requirement even for the primary election, that the Appellants wish to donate to and read into the 1999 CFRN (as altered) and to use same to void the general election. – Per H. M. Ogunwumiju, JSC

 

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MEMBERSHIP AND NOMINATION – CONDUCT OF COURTS TO ISSUES OF MEMBERSHIP AND NOMINATION OF ASPIRANTS BY POLITICAL PARTIES – MEANING OF JUSTIFIABILITY

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The Appellants were not aspirants within the ambit of Section 84(14) of the Electoral Act, 2022. The entire section which deals with nomination is pre-election in context. Thus, where sub-section (13) provides that the name of a political party in breach of Section 84 shall not be on the ballot, the right to enforce same enures to an aspirant within the context of Section 84(14) of the Electoral Act 2022 and Section 285 (14) of the 1999 CFRN (as altered). The Appellants are excluded from such enterprise.

My Lords, it is indeed the prerogative of a political party to determine who its members are. See ANYANWU v. OGUNEWE (2014) 8 NWLR (PT. 1410) PG. 437.

The Tribunal and the Court of Appeal were well guided by the very recent decisions of the superior Courts in UDOFIA v. ENANG (2023) LPELR-59447 (CA) and ABDULLAHI v. ARGUNGU (2023) LPELR-59950 (SC) which reinforced the same position. See also the very recent Supreme Court decision in ENANG v. ASUQUO (2023) 11 NWLR (PT. 1896) 510 AT 531 para F-G where this Court held as follows:

“This Court has consistently stated in a plethora of authorities that membership of a political party is a matter that is strictly within the domestic affairs of a political party and the Courts have no jurisdiction to determine who the members of a political party are. It is not justiciable. Black’s Law Dictionary, 8th Edition defined Justifiability this: “The quality or state of being appropriate or suitable for adjudication by a Court”.

I also rely heavily on JIME v. HEMBE (2023) LPELR-60334 (SC) where this Court succinctly held thus;

“There is no doubt, from the evidence before the trial Court that the 1st Respondent moved from party to party in search of a place to perch in order to secure a nomination for the 2023 Gubernatorial election in Benue State. While such an act might have moral implications, there is no provision in the Electoral Act that precludes a candidate from participating in more than one primary. What is forbidden is his nomination by more than one political party at the same time and to his knowledge” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (Pp. 32-33 paras A-D),

In that case, on pages 28 – 29 the Court also held that;

“It is not the duty of the Court to encourage practices that do not support democratic principles, but it is also not the duty of the Court to deliberately misapply the law in order to uphold moral democratic principles outside the contemplations of the legislation. The 1st Respondent in JIME v. HEMBE (SUPRA) was running from party to party, hopping from APC to NNPP to Labour Party. Unfortunately, the law as it stands does not sanction his behavior so long as only one party finally nominates him. In this case, the Appellant changed his case from double nomination to double participation midstream. Be that as it may, he was not able to prove double participation in two primaries of two different political parties by the 1st Respondent and neither was the Appellant able to prove double nomination of the 1st Respondent by two political parties to make the latter fall foul of Section 35 of the Electoral Act”. – Per H. M. Ogunwumiju, JSC

 

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COURTS – CONDUCT OF THE COURT IN INTERPRETING STATUTES – CONDUCT OF COURTS TO ISSUES OF MEMBERSHIP OF POLITICAL PARTIES AND SPONSORHIP OF CANDIDATES

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Apart from my above reasoning, I adopt wholesale the reasoning of my learned brother of the Court of Appeal Abiru JCA on pg. 9054-9055 of the Record as follows:

“It is elementary that in the interpreting a statute, the duty of a Court is to discover the intention of the law maker and in so doing it must consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter – Aliyu Vs Namadi (2023) LPELR 59742 (SC), Abdullahi Vs Argungu (2023) LPELR 59950 (SC), Carnation Registrars Ltd Vs The President, National Industrial Court of Nigeria (2023) LPELR 60102 (SC). It is also elementary that in interpreting a statute, nothing is to be added to or taken from its provisions – Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249, Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 137. In Alagbaoso Vs INEC & Ors (2023) LPELR 59702(SC), Garba, JSC, succinctly explained the two principles thus:

“…provisions of a statute or law which are clear, express, precise and unambiguous should never be subjected to interpolations and/or glosses by the importation into or exportation of any words or extraneous situations not provided for or even envisaged by the provisions… As demonstrated in the lead judgment, such clear, precise, and unambiguous provisions do not call for interpretation, but application to the facts of a given case in such a way that the plain and unequivocal, intendment/intention of the Legislature expressly stated therein would not be whittled down or altered to suit a particular interest. The proper application of the provisions to any given set of facts would not and cannot lead to an ambiguity since the words deliberately and precisely chosen, used and employed by the Legislature are in themselves clear, and, unambiguous in expressing the real intention, purport and aim of the provisions. The duty of the Courts is to apply the provisions as they are and not import interpretation or construction that would import into; add to take out; subtract from the provisions thereby altering or amending the provisions to fit into particular circumstances or situations that are totally alien thereto. The Courts have no direct power and authority or jurisdiction to legislate under any guise in order to fill in gaps that might appear in statutes or laws enacted by the Legislature, whose constitutional province it is to review, alter or amend the provisions of such statutes or laws. The Courts only expound, but cannot expand the clear, express, unambiguous, and mandatory provision of a statute or law in the name of interpretation or construction which the provisions do not call for…”

Applying these principles to the above provisions, it is obvious that the requirements of a political party maintaining a Register of Members and making it available to the Independent National Electoral Commission thirty days before the date fixed for the party primaries, congresses or convention is purely for regulatory purposes. This is more so as there is no sanction provided in the Electoral Act for a political party that fails to comply with the provisions. The submitted Register of Members is not, and cannot be, conclusive on who are the members of a political party at the time fixed for the party primaries, congresses or convention as there is nothing in the provisions banning political parties from taking on new members after the submission of their Register of Members to the Independent National Electoral Commission – Enang Vs Asuquo (2023)11 NWLR (Pt 1896) 510 at 536G.

Neither is there anything in the provisions debarring such new members who joined after the submission of the Register of Members from participating in the primaries, congresses, or conventions of the political party conducted thereafter. The Courts recognize that it is within the prerogative of political parties to grant waivers to such people to contest their primary elections if it is considered in the best interest of the party to do so – Musa Vs PRP (1981) 2 NCLR 763 at 769, Agi Vs PDP (2017) 17 NWLR (Pt 1595) 386 at 468 F-G and Enang Vs Asuquo supra. These are issues clearly touching on the management and running of the political party and within the internal affairs of the political party – Peoples Democratic Party Vs Ezeoriwuka (2018) 3 NWLR (Pt 1606) 187, Ibrahim Vs Abdallah (2019) 7 NLR (Pt 1701) 293 at 311-312H-D, Udofia Vs Utuk (2023) LPFLR 59646 (CA)”. – Per H. M. Ogunwumiju,JSC

 

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CANDIDATE – WHETHER THE METHODOLOGY BY WHICH A CANDIDATE WAS NOMINATED BY HIS PARTY IS JUSTICIABLE

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There is no doubt that the Appellants had raised a purely political question not meant for the Courts. Section 177 (c) of the 1999 CFRN (as altered) is meant to prohibit independent candidature. Where a party had embraced a candidate, sponsored him for election, the methodology by which the candidate was nominated by his party is not justiciable. See UDOFIA v. ENANG (SUPRA); ABDULLAHI v. ARGUNGU (SUPRA) and ENANG v. ASUQUO (SUPRA). – Per H. M. Ogunwumiju, JSC

 

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PRIMARY ELECTION – THE INDIVIDUALS THAT CAN COMPLAIN ABOUT THE NOMINATION OF A CANDIDATE BY A POLITICAL PARTY

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The fact that the 2nd Respondent was jumping from one party to another until he found habour is not contrary to the Electoral Act or the Constitution. In any event, it is another aspirant at the party primaries that can complain. The 2nd Respondent cannot be legally faulted for finding succor with Labour Party after he lost the primaries at PDP so long as Labour Party had accepted him. There is no doubt that the 2nd Respondent was a member of the 3rd Respondent at the time of the election. See JIME v. HEMBE (SUPRA). – Per H. M. Ogunwumiju, JSC

 

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REGISTER OF MEMBERS – WHETHER THE ELECTORAL ACT DISQUALIFIES A CANDIDATE WHOSE NAME IS NOT IN THE REGISTER OF MEMBERS SUBMITTED TO INEC BY HIS PARTY – TIME FRAME FOR FILING A PRE-ELECTION MATTER

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The Appellants placed heavy reliance on Section 77 of the Electoral Act, 2022 and the allegation that the name of the 2nd Respondent was not in the 3rd Respondent’s register of members submitted to INEC before its primary election. However, there is nothing in Section 77(3) of the Electoral Act that disqualifies a candidate whose name was not in the register of members submitted by his political party to INEC not later than 30 days before the date fixed for the party primaries, congresses or convention. Neither a party nor the Court is allowed to import into a statutory provision what is not contained therein.

Another reason why the tribunal lacked jurisdiction to entertain the complaint about the 2nd Respondent’s qualification is that the nature of the complaint, being issues of nomination and sponsorship of the 2nd Respondent by the 3rd Respondent, are firmly within the realm of a pre-election matter. See Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It is now settled that it is only a member of a political party who was an aspirant that participated in the primary election that can challenge the sponsorship and nomination of the candidate who emerged from the primary election. See PDP V. INEC & ORS (2023) LPELR – 60457 (SC).

Assuming the Appellants had the locus standi to raise the issue, same had become statute-barred at the time of the filing of the Petition as, by dint of Section 285(9) of the Petition, a pre-election matter must be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit. – Per Adamu Jauro, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Electoral Act, 2022

3. Electoral Act 2010

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