Legalpedia Citation: (2024-03) Legalpedia 93842 (SC)

In the Court of Appeal

Holden at Abuja

Thu Mar 28, 2024

Suit Number: CA/ABJ/CV/527/2022

CORAM

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Hannatu Azumi Laja-Balogun Justice of the Court of Appeal

Jane Esienanwan Inyang Justice of the Court of Appeal

PARTIES

HONOURABLE YAKUBU DOGARA

APPELLANTS

1. PEOPLES DEMOCRATIC PARTY (PDP)
2. ALHAJI HAMZA KOSHE AKUYAM
3. THE SPEAKER, HOUSE OF REPRESENTATIVES
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. ALL PROGRESSIVES CONGRESS (APC)

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant resigned his membership of the party that sponsored him as a member of the house of representatives and the 1st and 2nd Respondents herein commenced an action at the lower Court via an originating summons. They sought the determination of the constitutional provision and consequences or stand about defection of members from the political parties that sponsored them before the expiration of their terms based on the provisions of Section 68 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 68(2) of the Constitution, Section 57 of the Constitution read together and Section 8(2)(b) of the Legislative Houses (Powers and Privileges) Act.

After hearing the Appellant’s Notice of Preliminary Objection contemporaneously with the substantive suit, the lower Court overruled the preliminary objection, ruled in favour of the plaintiffs  and granted the reliefs sought therein.

Dissatisfied with the judgment of the lower Court, the Appellant filed the instant appeal

HELD

Appeal dismissed

ISSUES

1. Whether the trial Court was not right to have granted the reliefs sought by the 1st and 2nd Respondents?
2. Whether the trial Court was not right to resolve the instant suit without calling for oral evidence?

RATIONES DECIDENDI

RESIGNATION AND DEFECTION – MEANING OF THE TWO WORDS ‘RESIGNATION’ AND ‘DEFECTION’

Assuming there is even proof of acknowledgement of the receipt of the letter, there is a world of difference between resignation and defection.

Defection and/or cross carpeting is an act of going across, the act of passing from one side to the other.

To resign on the other hand, is to give up, to relinquish ownership of and or to quit a position. The word “resignation” is defined in Black’s Law Dictionary, Ninth Edition, page 1424 to mean the act or an instance of surrendering or relinquishing an office, right or claim. Thus, it is a formal notification of relinquishing from an office or position. – Per M. L. Shuaibu, JCA

POLITICAL PARTIES – CONDITION FOR QUALIFICATION FOR ELECTION AS A MEMBER OF HOUSE OF REPRESENTATIVES – DUTY OF POLITICAL PARTIES TO SUBMIT LIST OF CANDIDATES TO INEC

It is however instructive to note that by virtue of Section 65 (1) (b) of the Constitution, a person shall be qualified for election as a member of House of Representatives if inter alia he is a member of a political party and is sponsored by that party. Furthermore, Section 29(1) of the Electoral Act, 2022 provides that every political party shall, not later than 180 days before the date appointed for a general election, submit to the Commission, in prescribed forms, the list of the candidates, the party proposes to sponsor at the elections who must have emerged from valid primaries conducted by the political party. This implicitly means the Constitution of the Federal Republic of Nigeria, 1999 (as amended) made no provision for Independent Candidate. While considering the above constitutional provisions, this Court in the case of Fashogbon Vs Adeogun (No. 1) (2007) ALL FWLR (Prt 396) 661 per Adekeye, JCA (as he then was) at 647; “It is therefore of common knowledge that a person can only qualify and become eligible to vie for an elective post not only if he is a member of a political party, but must equally be sponsored by that party as a candidate. As it can be judicially noticed that the concept of independent candidacy at an election is not embraced by the 1979 Constitution or any statute, the Electoral Act, 2006 in particular.” – Per M. L. Shuaibu, JCA

POLITICAL PARTY – WHERE A PERSON WHOSE ELECTION WAS SPONSORED BY A POLITICAL PARTY RELINQUISHES HIS MEMBERSHIP BEFORE THE EXPIRATION OF HIS TENURE – DIFFERENCE BETWEEN DEFECTION FROM A POLITICAL PARTY AND RESIGNATION FROM A POLITICAL PART

…the circumstances under which a person whose election to the House was sponsored by a political party but relinquished his membership of that party before the expiration of his tenure is contained in the proviso to Section 68 of the said Constitution. The circumstances are where there is a division in the political party of which he was previously a member or a merger of two or more political parties or factions by one of which he was previously sponsored. None of these circumstances or scenarios unveiled itself in the present case.

Furthermore, in the case of PDP & Anor Vs Kawuwa & Ors (supra), this Court, per Georgewill, JCA at page 162 differentiated defection from a political party and resignation from a political party to the effect that defection from a political party is more in relation to his place in the legislature while resignation of a political party preceded a defection on the floor of the parliament. – Per M. L. Shuaibu, JCA

RATIO DECIDENDI – CONDUCT OF COURTS IN APPLYING RATIO DECIDENDI

By doctrine of stare decisis, this Court is bound by its earlier decision because it is the same Court. However, a case is decided on the facts presented to the Court. A case is not decided in vacuo or in vacuum. Accordingly, a ratio decidendi is based on the facts of a case.

Therefore, a ratio decidendi in one case may not be applicable in another case where the facts are quite different. Where the facts of the cases are similar, a ratio decidendi in one case may apply to the other. Conversely, where facts in the two cases are different, it will be wrong to say that the decisions on the two cases are in conflict. See Idoniboye-Oby Vs NNPC (2003) 1 SC (Prt 1) 40 at 70 – 71. – Per M. L. Shuaibu, JCA

BURDEN OF PROOF – BURDEN OF PROOF IN ELECTION PETITIONS/CIVIL PROCEEDINGS

No doubt the plaintiffs now the 1st and 2nd Respondents had the primary duty of proving their case. Thus, the burden was on them to prove the facts they relied on in proof of their claim. See Section 135 of the Evidence Act, 2011. – Per M. L. Shuaibu, JCA

NEWSPAPER PUBLICATIONS – THE GENERAL RULE REGARDING NEWSPAPER PUBLICATIONS

The general rule is that newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the said publication. See Olly Vs Tunji & Ors (2012) LPELR-7911 (CA), Ayo Adegbite Vs The State (2018) 5 NWLR (Prt 1612) 183 at 204 and APC Vs Aguma & Ors (2020) LPELR-52574 (CA). – Per M. L. Shuaibu, JCA

RESIGNATION – THE EFFECT AND CONSEQUENCE OF AN INDIVIDUAL’S RESIGNATION FROM A PARTY WHEN HIS TENURE AT THE HOUSE OF REPRESENTATIVES HAS NOT EXPIRED CONDUCT OF COURTS IN INTERPRETING THE CONSTITUTION – WHETHER A PERSON MUST BE A MEMBER OF A POLITICAL PARTY TO BECOME A MEMBER OF A LEGISLATIVE HOUSE

…the resignation of the Appellant from the 1st Respondent while his tenure at the House of Representatives has not expired is not in any doubt. I have also held the firm view that neither the 1999 Constitution (as amended) nor the Electoral Act, 2022 allow or recognize independent candidate for any elective positions. Thus, considering the provisions of Sections 68 (1) (g) and 65 (2) (b) of the Constitution and 29 (1) of the Electoral Act aforesaid, the Appellant having relinquished his party membership, has to vacate his seat at the House of Representatives. The reason is not farfetched; the foundation of his membership at the House of Representatives has automatically collapsed.

Courts have said several times that the provisions of the Constitution ought to be read and interpreted as a whole in that related sections must be construed together. It was similarly held by the apex Court in INEC Vs Musa (2003) 1 SC (Prt 1) 106 at 183 that while the Court has consistently championed the liberal interpretation of the Constitution for the purposes of expanding the frontiers of the Constitution to accommodate as much foreseeable and proximate situations as possible, this Court cannot do so when the provisions of the Constitution are clear and the intention of the makers of the Constitution are thus obvious. Once the intention of the law maker is clear, resort cannot be made to liberal interpretation of the Constitution.

In the instant case, the intention of the constitutional makers is very clear that for a person to become a member of any legislative house, he must inter alia be a member of a political party and is sponsored by that party and to suggest otherwise, will amount to the judge making law. Perhaps, the Judge could be involved in making the law if the intention of the lawmaker is not clear and he is in a difficult position in the circumstances of the case before him. Put differently, Courts should keep its boarders of interpretation of the Constitution closed if opening them will result in destroying the intention of the makers of the Constitution. – Per M. L. Shuaibu, JCA

COURTS – CONDUCT OF COURTS TO CONFLICT OF AFFIDAVIT EVIDENCE

The position of the law regarding conflict of affidavit evidence has been well settled thus: (1) Where the conflict is not on material fact but merely flimsy, peripheral or irrelevant, the Court is to ignore such purported conflict and proceed to resolve the matter on the material facts that are not in dispute or that have been admitted or deemed admitted; (2) Where the conflict is material, the Court is to invite the parties to call oral evidence to resolve the conflict; (3) Where there is documentary evidence upon which the conflict can be resolved, the Court need not call oral evidence. It is to resolve the conflict based on the documentary evidence. See Akinsete Vs Akinduttire (1966) 1 NLR 149 and Falobi Vs Falobi (1976) 9 – 10 SC 1.

​Also by virtue of Section 116 of the Evidence Act, 2011, when there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence of the deponents of the affidavit and such other witnesses as may be called by the parties. – Per M. L. Shuaibu, JCA

COURTS – CONDUCT OF COURTS IN DETERMINING WHETHER PROCEEDINGS MAY BE HEARD ENTIRELY ON AFFIDAVIT EVIDENCE

It is pertinent to note that whether proceedings may be heard entirely on affidavit evidence or not is not to be determined by the form of the proceedings but by the nature of the issue and the parties’ reaction, to the facts in issue in the proceedings. Where there is no contentious issues of fact in the proceedings, no reasonable objection can be taken to a hearing on the affidavit. It is only when there is serious dispute as to the facts to be resolved that the trial on affidavits is inappropriate. See N.P.C. Vs Ikere L. G. (2001) 7 SC (Prt 111) 90 at 98. – Per M. L. Shuaibu, JCA

CONSTITUTION – WHETHER THE CONSTITUTION PROVIDES FOR INDEPENDENT CANDIDATURE – THE CONSTITUTIONAL STAND WHERE A PERSON WHO IS ELECTED DEFECTS TO ANOTHER POLITICAL PARTY EXCEPT ON SOME PERMITTED BASIS

By Section 65 (1) (b) of the Constitution of the Federal Republic of Nigeria 1999, only a person who belongs to a political party and who is sponsored by that party is eligible for election into the various elective offices in Nigeria including the House of Representatives. There is no provision for independent candidature or party-less representation in the 1999 Constitution. See FASHOGBON V ADEOGUN (NO 1) (2007) ALL FWLR (PT 396) 661. By the provisions of Section 68 (1) (g) of the said 1999 Constitution, a person who is elected shall loose his seat if he defects to another political party except where there is party factioning, restructuring, division or merger as contained in the said provision. By a combination of Sections 68 (1) (g) and 65 (1) (b) of the Constitution therefore, a person who resigns from his political party will be a defector if he joins another party and will be party-less or an independent member, if he does not. Either way, the member ought to lose his seat and the seat declared vacant. To allow persons who resign from their political parties to remain in the Assembly would mean to allow independent candidacy and will be against the spirit of the above provisions of the Constitution. – Per H. A. L. Balogun, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Legislative Houses (Powers and Privileges) Act
3. Evidence Act, 2011
   

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