Legalpedia Citation: (2023-01) Legalpedia 34741 (SC)

In the Supreme Court of Nigeria

Fri Jan 13, 2023

Suit Number: SC.CV/1440/2022

CORAM

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa 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

PARTIES

HON. JERRY ALAGBAOSO

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. PEOPLES DEMOCRATIC PARTY
3. JONES ONYERIRI

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant and the 3rd Respondent are members of the 2nd Respondent, a political party in Nigeria. The Appellant and the 3rd Respondent with two other members of the 2nd Respondent contested in the primary election for the position of the party’s candidate for Imo West Senatorial District in the 2023 General Elections.

Before the conduct of the said primaries, the 2nd Respondent applied to the 1st Respondent to allow her to conduct her primaries at the state headquarters because of the emergency situation of insecurity in the state. The primary elections of all the candidates for the Federal House of Representatives and all the candidates for the Senate of the National Assembly in all parts of the State were held at Owerri, the Imo State Capital. The Appellant lost the election. The 3rd Respondent scored 228 votes to win the primary while the Appellant scored 58 votes. The Appellant had protested the change in the venue of the election before the election but he had signed an undertaking not to contest the outcome of the election.

The Appellant, dissatisfied, filed the case at the Federal High Court and when he lost, he appealed to the Court of Appeal vide a Notice of Appeal. The Court of Appeal dismissed the appeal of the Appellant on the 3rd day of November, 2022.

Aggrieved by the decision, the Appellant filed the instant appeal.

HELD

Appeal Allowed

ISSUES

Whether the Court below was right to hold that Section 84(5)(c)(i) of the Electoral Act, 2022 admits of any exceptions to justify the conduct of the Imo West Senatorial District even where all the candidates participated at the election?

RATIONES DECIDENDI

GOVERNMENT – THE PRIMARY PURPOSE OF GOVERNMENT – WHERE THE CONSTITUTION CONFLICTS WITH ANY OTHER LEGISLATION

The provisions of Section 14 (1)(2)(b) of Chapter 11 of the 1999 Constitution is apt and indeed instructive. It has this to say:

14(1) The Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice,

(2) It is hereby accordingly declared, that

(b) The security and welfare of the people shall be the primary purposed of government…

Let me quickly state here, that where the provisions of the 1999 Constitution which is the grundnorm of this Country conflicts with the provisions of any other legislation, including the Electoral Act, 2022, the provisions of the 1999 Constitution shall prevail. – Per H. M. Ogunwumiju, JSC

INEC – POWERS DONATED TO INEC BY THE CONSTITUTION

My lords, there is no doubt that by virtue of item 15 of Part 1 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended), the 1st Respondent has the constitutional powers donated by the Constitution to:

(a) Organize, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives, and the House of Assembly of each State of the Federation

See also NDP v. INEC (2013) 6 NWLR pt. 1350 pg. 392. – Per H. M. Ogunwumiju, JSC

WAIVER – MEANING OF WAIVER OR ESTOPPEL BY CONDUCT

Waiver or estoppel by conduct is the voluntary surrender of a privilege or right which an individual may insist upon. See ODUA INVESTMENTS CO. LTD v. TALABI (1997) 10 NWLR Pt. 523 Pg. 1, AUTO IMPORT/EXPORT v. J. A ADEBAYO. (2005) 19 NWLR Pt. 959, ARIORI v. ELEMO (1983) LPELR 552 (SC) 1 NLR 1, ADENIYI v. GOVERNING COUNCIL, YABATECH (1993) 6 NWLR Pt. 300 Pg. 426, EZE v. OKECHUKWU & ORS (2002) 18 NWLR Pt. 799 Pg. 348.  – Per H. M. Ogunwumiju, JSC

WAIVER – MEANING OF WAIVER – WHETHER PARTICIPATION IN A RESCHEDULED ELECTION IS A WAIVER OF THE RIGHT TO PROTEST

In SYLVIA v. INEC… In a unanimous judgment dismissing the appeal, the apex Court held per MUHAMMAD, JSC (as he then was) at Pg. 349 Para E-G, inter alia as follows

“… Waiver is the intentional and voluntary surrender or relinquishment of a known privilege and/or right. Therefore, it implies a dispensation or abandonment by the party waiving of a right or privilege which, at his option, he could have insisted upon… their participation in the rescheduled election showed that by their conduct, they had waived their right to protest any longer…” – Per H. M. Ogunwumiju, JSC

WAIVER – MEANING OF WAIVER

Waiver has been defined as an intentional and voluntary surrender of privilege or right…  – Per H. M. Ogunwumiju, JS

WAIVER – WHETHER THERE CAN BE A WAIVER BY AN INDIVIDUAL OR ESTOPPEL BY CONDUCT OF THE EXISTENCE OF A STATUTORY PROVISION – RIGHTS THAT INDIVIDUALS CAN WAIVE

An aspirant who has been made by the party to sign an undertaking not to complain about the outcome of the primary election is damned if he does complain about manifest irregularities in the conduct of the primaries and downright violation of the law in respect of the primary election he has participated in. If he feels as in this case that there would be manipulation of the primaries by his party and refuses to participate in the election, he is also damned because then he cannot complain about a primary election he did not participate in. There is no doubt that the National Assembly has given a candidate the right to complain, the Court cannot take away that right. Undoubtedly, there can be no waiver by an individual or estoppel by conduct of the existence of a statutory provision.

As is well explained in AG BENDEL STATE v. A.G.F & ORS(1981) 10 SC Pg. 01, it is trite that anyone can waive or agree or acquiesce to waive a law made solely to protect or benefit the individual in his personal capacity. One may dispense with a right that is granted by law so long as the waiving of the right does not interfere with public policy or public right. It is a truism that a law is a law as a matter of fact and not according to the whims and caprices and circumstances of the parties. The particular provision in the Electoral Act does not create a private right or interest and its purpose is to protect public interest to ensure that the electorate from the ward or base level has an opportunity to vote for their lawmakers in their locality without let or hindrance.

The law is settled that where a statute lays down a clear path, process and procedure for doing an act, that path and procedure must be followed to the letter. SeeDR. ABDU HO v. MUSTAPHA ABUBAKAR & ORS (2016) LPELR – 41635 (CA). – Per H. M. Ogunwumiju, JSC

INTERPRETATION – GENERAL RULE OF INTERPRETATION – CONDUCT OF COURTS IN INTERPRETING STATUTES

The Court’s interpretation of a statute must not defeat its intent. The general rule in the interpretation of statutes is that where the words of a statute are plain, clear and unambiguous, the Courts should give effect to their literal meaning so long as the interpretation would not be absurd. See HON. IFEDAYO ABEGUNDE v. ONDO STATE HOUSE OF ASSEMBLY (2015) 4 SCNJ 179.

Since Section 84(5)(c)(i) of the Electoral Act is not ambiguous, resort must be had to the literal rule to ensure strict observance. Nothing can be added to a law by utilizing the golden rule of interpretation of statutes to expand the law beyond the intendment of the legislature.

When a provision in a statute is clear, the Court’s power at construing it is limited. See ALH. ADO IBRAHIM v. ALH MAIGIDA LAWAL (2015) 6 SCNJ 1. You can only have recourse to other canons of interpretation when the law is not clear enough. When provisions in a statute appear harsh in practice, it is not the function of the Courts to bend backwards to sympathize with affected parties by giving it a soothing interpretation. MOHAMMED ABACHA v. FRN (2014) 1SCNJ 37, KRAUSS THOMPSON v. NIPSS (2004) 17 NWLR Pt. 901 Pg. 44 (SC). – Per H. M. Ogunwumiju, JSC

STATUTES – WHERE STATUTORY PROVISIONS ARE CLEAR – THE USE OF THE WORD ‘SHALL’ IN STATUTES

There is no argument that the guidelines for primaries of the 2nd Respondent state specifically that the primaries should be held in the Senatorial District. There is also no doubt that Section 84(5)(i) of the Electoral Act provides that the Primary Election under consideration should have been held within the Senatorial District. Therefore both the statute and the party guidelines had at its heart, the policy to hold the primary election at a location near the people of the constituency. The statutory provision made it mandatory by using the word “shall”. If it had the word “shall” but went further to put a proviso or an exception, then the word “shall” might be construed to be merely directory. INEC decided to ignore or water down or create exceptions in respect of a mandatory provision in the Electoral Act made by the National Assembly which gave it the power to undertake, organize and supervise all elections in the elections in the country including the supervision of party primaries. – Per H. M. Ogunwumiju, JSC

PUBLIC POLICY – MEANING AND ESSENCE OF PUBLIC POLICY – VENUE FOR SENATORIAL PRIMARIES

The National Assembly represents the people and the party representing party faithfuls in 2022 chose to draw up an Act and guidelines respectfully to protect internal democracy in the political party by ensuring that everyone is included in the democratic process so that voting at all levels of the process is done as much as possible at the grassroots level. INEC and a party cannot collude to frustrate public policy. In OKONKWO v. OKAGBUE (1994) 9 NWLR Pt. 386 Pg. 301, the Supreme Court defined public policy as the ideals which for the time being prevails in any community as to the conditions necessary to ensure its welfare, so that anything is treated as against public policy if it is generally injurious to the public interest. Public policy holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against public good which may be termed as it sometimes has been, the policy of the law or policy in relation to the administration of law. In this case, obviously, the provision for delegates at primaries to vote within the confines of the senatorial district is to ensure a free and fair primary election at the grass root so to speak.

There is no insensitivity here to the general insecurity in some parts of Nigeria. The security situation was in existence long before both the Electoral Act, 2022 and the party guidelines for 2022 primaries were promulgated and published respectively. In spite of the pre-existing security situation, the National Assembly enacted a law which mandated the parties to hold primaries anywhere in the senatorial district. It is apparent that the Court below did not understand the purport of the judgment of this Court in MATO v. HEMBER, if not it would not have affirmed the judgment of the trial Court on this point. Also, it is apparent from page 1203 of the record that the Court below considered the provision of Section 84(5)(b)(i) relating to the venue of primaries for Governorship aspirants rather than the relevant provision of Section 84(5)(c)(i) relating to senatorial primaries. – Per H. M. Ogunwumiju, JSC

POLITICAL PARTIES – DUTY OF POLITICAL PARTIES TO UPHOLD THEIR CONSTITUTIONS – WHETHER THE PROVISION OF THE LEGISLATION CAN BE EXPANDED – THE ROLES OF POLITICAL PARTIES AND INEC IN PRIMARY ELECTIONS

Political parties must obey their own constitution. See UZODINMA v. IZUMASO (NO. 2) (2011) 7 NWLR PT. 1295 Pg. 30 at 60, UGWU v. ARARUME (2007) 12 NWLR Pt. 1048 Pg. 326 at 914 and CPC v. LADO (2011) 14 NWLR Pt. 1266 Pg. 40 at 91-92

The Legislature probably saw the subjectiveness or arbitrariness inherent in making the law subjective that is why it was couched in a mandatory manner devoid of room to maneuver. In any event, if the legislature wants the law expanded, it would do so in the future stating clearly the terms of expansion and the extenuating circumstances.

Since there is no room to expand the provision of the legislation, there is no need to decide the nature or quantum of proof needed by a person seeking the indulgence of an expanded provision due to extenuating circumstances.

​It is the duty of the party to conduct and supervise primaries while INEC observes to comment on the level of compliance by the party with the Electoral Act. INEC cannot conduct primary for a political party. It can only conduct the election proper. It is important that INEC should know that it must not collude or encourage parties to disobey the law guiding them and the elections. This has already been settled in SC.CV/1401/2022 – MUKTARI ADAMU YERIMA v. DR. MIDALA USMAN BALAMI & 2 ORS – Per H. M. Ogunwumiju, JSC

STATUTES – WHERE THE PROVISIONS OF STATUTES ARE CLEAR AND UNAMBIGUOUS – DUTY OF THE COURTS WHEN INTERPRETING STATUTES

I would emphasize that the application of mandatory 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 in the name of reasonableness or harshness thereof, or imaginary fairness or attainment of justice. As demonstrated in the lead judgment, such clear, precise and unambiguous provisions do not call for interpretation; see PDP v. CPC (2011) 17 NWLR (pt. 1330) 407 at 523 (SC), 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 or 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. See, generally, Toriola v. Williams (1982) 7 SC, 27 at 47 – 48, Ifezue v. Mbadugha (1984) 5 SC, 1, (1984) All NLR, 256, (1984) SCNLR, 427, Kotoye v. Saraki (1994) 7 NWLR (pt. 357) 414 (SC), Dyktrade Ltd. v. Ominia Nig. Ltd. (2000) 12 NWLR (pt. 680) 1 (SC), Adewunmi v. A. G., Ekiti State (2002) 2 NWLR (pt. 751) 474 at 512, Uwazurike v. A. G. Federation (2007) 8 NWLR (pt. 1035), 1, (2007) 2 SC, 169, Action Congress v. Jang (2009) 4 NWLR (pt. 1132) 475, PDP v. CPC (2011) 17 NWLR (pt. 1277) 522 (SC), (2011) LPELR – 2909 (SC), Abubakar v. Nasamu (2012) 17 NWLR (1330) 407 at 523 (SC), in addition to the cases cited in the lead judgment. – Per M. L. Garba, JSC

COURTS – CONDUCT OF COURTS WHEN INTERPRETING STATUTES AND REGULATIONS

In addition, taking into account the general attitude of political parties in the country to wantonly and flagrantly disregard extant provisions of the law and their own rules, Regulations and Guidelines for the procedures for the selection and nomination of candidates by way of primary elections, it would clearly be against the ideals of true and real democracy to read into the provisions of mandatory provisions of the law and guidelines, any excuse or reason for non-compliance, breach or violation by the political parties.

The Court must and shall insist on strict application of the law and the Guidelines in the conduct of political party primaries for the purpose of selection and/or nomination of candidates for elective public offices in Nigeria, if the culture of true constitutional democracy is to be involved, natured and maintained, as practiced in other Countries we always try to copy in our national development. There is no other viable way for sincere and meaningful national progress. – Per M. L. Garba, JSC

PRIMARY ELECTION – PENALTY FOR THE BREACH OF THE ELECTORAL ACT IN THE CONDUCT OF PARTY PRIMARY ELECTION

Section 84 (13) of the Electoral Act, 2022, has specifically and expressly provided for the consequence and penalty for the breach, violation or non-compliance with provisions of the Act by a political party in the conduct of party primary for the selection/nomination of candidates for elective offices. It stipulates that:-

“(13) Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.” – Per M. L. Garba, JSC

COURT – DUTY OF COURTS IN INTERPRETING CLEAR AND UNAMBIGUOUS PROVISIONS OF STATUTE

Where the provisions of a statute are clear and unambiguous, the duty of a Court in interpreting such provisions is to ascribe to them, their ordinary meanings, without any subtraction, addition or embellishment. No Court has the jurisdiction to twist the meaning of the words used in a statute in order to fit into its own wishes or that of the parties. Even where the law appears strict, it is not for the Court to embark on what is commonly referred to as “judicial legislation” by stretching the meanings of the words used and giving them an entirely different colouration from what was intended by the legislature. The duty to make laws or amend them rests squarely and solely with the legislature. The judicial arm of government has no such duty. See KASSIM V. ADESEMOWO (2021) 18 NWLR (PT. 1807) 67; UGBA V. SUSWAN (2013) 4 NWLR (PT. 1345) 427; DAPIANLONG & ORS V. DARIYE & ANOR (2007) LPELR – 928 (SC); UNIPETROL NIG. PLC V. EDO STATE B.I.R. (2006) LPELR – 3398 (SC); COTECNA INT’L LTD. V. IVORY MERCHANT BANK LTD (2006) LPELR – 896 (SC); IBRAHIM V. JUDICIAL SERVICE COMMITTEE, KADUNA STATE & ANOR (1998) LPELR – 1408 (SC). – Per Adamu Jauro, JSC

SENATORIAL PRIMARIES – WHERE THE PRIMARY ELECTIONS FOR SENATORIAL CANDIDATE SHOULD HOLD

Section 84(5)(c)(i) of the Electoral Act, 2022 which the trial Court was, among other instruments and statutory provisions, called on to interpret is unequivocal as to where the primary election for the selection of a political party’s senatorial candidate should hold. The section makes no exception for the holding of such a primary election outside the Senatorial District. By attempting to create an exception to the provision, the two lower Courts read into the law, what the legislature did not include therein.  – Per Adamu Jauro, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. INEC Guidelines for the Conduct of 2023 Political Party Primaries and Nomination of Candidate for Election
4. PDP Electoral Guidelines for Primary Elections
5. PDP Constitution
6. Evidence Act, 2011

 

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