LABOUR PARTY (LP) V. ELUMELU NDUDI GODWIN & ORS
March 11, 2025LATEEF O. FAGBEMI SAN V. ALL PROGRESSIVES CONGRESS & 23 ORS
March 11, 2025Legalpedia Citation: (2023-09) Legalpedia 34343 (CA)
In the Court of Appeal
ABUJA JUDICIAL DIVISION
Thu Sep 14, 2023
Suit Number: CA/AS/EP/HR/DL/06/2023
CORAM
Muhammed Lawal Shuaibu JCA
Habeeb Adewale Olumuyiwa Abiru JCA
Abdul-Azeez Waziri JCA
PARTIES
OKOLIE NGOZI LAWRENCE
APPELLANTS
1. ELUMELU NDUDI GODWIN
2. PEOPLE DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. LABOUR PARTY
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
Sequel to the declaration and return of the Appellant, the candidate of the fourth Respondent, by the third Respondent as the winner of the general elections held on the 25th of February, 2023 to elect Member of the House of Representatives representing the Aniocha/Oshimili Federal Constituency of Delta State, the first and second Respondents commenced the action in the lower Court by a petition filed on the 17th of March, 2023 to contest the outcome of the election and the third Respondent, the fourth Respondent and the Appellant were the first to the third Respondents respectively.
The major grouse of the Petitioners was that the Appellant was not duly sponsored by the fourth Respondent as its candidate within the contemplation of Section 65 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). They also complained that the Appellant who was a Senior Special Adviser to the Delta State Government did not resign as a political appointee of the Delta State Government as required by the Electoral Act.
The lower Court ruled in favour of the Petitioners and returned the first Respondent, who came second in the general election, as the person validly elected and it directed the third Respondent to issue him with a Certificate of Return.
Dissatisfied by the decision, the Appellant filed the instant appeal.
HELD
Appeal allowed
ISSUES
Whether, from the facts and circumstances of this case as contained in the pleadings of the parties and led in evidence, the lower Court was correct when it found and held that the first and second Respondents made out a credible case to sustain their contention that the Appellant was not qualified to contest the general election held for the Member of the House of Representatives for the Aniocha/Oshimili Federal Constituency of Delta State on the 25th of February, 2023?
RATIONES DECIDENDI
COURTS – WHETHER A PARTY IS ALLOWED TO PRESENT DIFFERENT/OPPOSING CASES BEFORE EACH HIERACHY OF COURTS AS HE LIKES
The law is settled that parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does substitute for pleadings — Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC).
Similarly, the lower Court and the appellate Courts are bound by the pleadings of the parties and a trial Court should not consider an issue not raised by the parties on the pleadings and an appellate Court should also not allow a party to canvass on appeal an issue that was not raised by the party on his pleadings before the lower Court – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388. This is in furtherance of the principle that a party must be consistent in stating his case at the trial Court up to the appellate Court. A party is not allowed to present different cases before each hierarchy of Court as he likes. Put differently, a party is not allowed in the presentation of his case before the Court to approbate and reprobate. A litigant should not be allowed to speak at the same time or the same moment from the two sides of his mouth. He can only be allowed to speak from one side of the mouth at the same time or the same moment. He cannot make a case in his pleadings and suddenly change or reverse position to make a different case – Oliyide & Sons Ltd Vs Obafemi Awolowo University (2018) LPELR 43711 (SC), Uba Vs Ozigbo (2021) LPELR 56672(SC), Christopher Vs State (2022) LPELR 57565 (SC), Uzoho Vs National Council on Privatisation (2022) LPELR 57608(SC), Osho Vs All Progressives Congress (2023) LPELR 59728(SC). In the case Peoples Democratic Party Vs Uche (2023) LPELR 59604(SC), Agim, JSC made the point at pages 58-59 thus:
“…In any case, whatever his motive for such summersault, he is mandatorily bound by law to consistently maintain and pursue the prosecution of the case he filed in Court throughout all stages of the hearing of the case, even on appeal to the Court of Appeal or a further appeal to this Court. He cannot change the case to a new one at any stage of the hearing. For as the saying goes, you can’t change horses midstream. The law is settled by a long line of our decisions that a party must consistently make his case and not change his case at different stages of the hearing of his case. He will not be allowed to take one position in his originating processes and then turn around and take a different position at a later stage in the case.”
The third Respondent cannot be allowed in this appeal to maintain a position that is diametrically opposed to the case it made out on its pleadings before the lower Court. – Per H. A. O. Abiru, JCA
PLEADINGS – THE PURPOSE OF PLEADINGS – DUTY OF A PARTY IN DRAFTING OF PLEADINGS
The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the teal matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Amakeze Vs Nze Petroleum Co (Nig) Ltd (2021) 1 NWLR (Pt 1756) 107, Okeke Vs Nwigene (2022) 3 NWLR (Pt 1817) 313. In Okoye Vs Nwankwo (2014) 15 NWLR (Pt 1429) 93, the Supreme Court stated the principle at page 125 G-H thus:
“The purpose of pleading is to afford the opponent the opportunity of knowing the case he would meet at trial. It is for that reason that all facts relied upon by the party in a civil matter before a superior Court of record must be clearly pleaded in numbered paragraphs. The reason for this principle of practice is that no party should take advantage of locking away facts from his pleadings and unleashing a surprise in Court by evidence on a matter not pleaded.”
Therefore, a party who predicates his case on some particular facts must plead those particular facts plainly and concisely – Olusanya Vs Osinleye (2013) 12 NWLR (pt 1367) 148, Okusami Vs Attorney General of Lagos State (2015) 4 NWLR (Pt 1449) 220, Ukachukwu Vs Government of Borno State & Ors (2017) LPELR- 43271 (CA). The primary function of a system of fact pleading is to compel the parties to disclose the essential facts that they are relying on to sustain their claim or defence. Disclosure functions to facilitate due process and a fair hearing because the parties are given notice of the case that they confront and because the parties and the Court are able to identify the matters that are uncontested and the issues that must be resolved by trial. A party must thus state in his pleadings frontally, categorically and specifically any matter which if not so stated may take the other side by surprise and no one is expected to prepare for the unknown — Edokpolo & Co Ltd Vs Sen-Edo Wire Industry (1984) 7-10 SC 119 at 164, Lakanmi Vs Government of Oyo State of Nigeria & ors (2013) LPELR-19915(CA) at pages 22D, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377. – Per H. A. O. Abiru, JCA
COURTS – WHERE A DECISION OF A COURT IS NOT APPEALED AGAINST
The lower Court found in the judgment that the first and second Respondents did not make out a credible case to support the assertion that the Appellant was not educated up to secondary school level as he alleged and as required under Section 65(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). There is no appeal against this finding and this means that the parties accept it as correct, conclusive and binding upon them and this Court has no business tampering with it – Yusuf Vs Kano State (2023) LPELR 59890(SC), Sanga Vs All Progressive Congress (2023) LPELR 60180(SC), State Vs Labbo (2023) LPELR 60461 (SC). – Per H. A. O. Abiru, JCA
AVERMENTS – WHERE AVERMENTS ARE NOT CONCISE
The averments when read together are confusing. The phrases “the constitutive elements of holding a due primary election” and “not conduct any primary election as required by the Electoral Act” are wooly, generic and nebulous. They did not state concisely exactly what the fourth Respondent did or did not do that rendered its process of nomination of the Appellant
invalid. The first and second Respondents did not particularize “the constituent elements” or the portions of the Electoral Act that were not met or complied with by the fourth Respondent.
The averments are equivocal and do not lend themselves to easy comprehension and are uncertain. They are vague and do not constitute proper pleading of facts —Nuhu Vs Ogele (2003) LPELR-2077 (SC), Garga Vs State (2022) LPELR 57677(SC), Abdullahi Vs Loko (2022) 57578(SC). – Per H. A. O. Abiru, JCA
FRESH FACTS – WHERE A PLAINTIFF DOES NOT REPLY TO FRESH FACTS RAISED BY A RESPONDENT
The law is clear that where a respondent files a defence pleading fresh facts in specific details and a plaintiff does not file a reply denying such facts, he is deemed to have admitted the fresh facts as correct – Adeleke Vs Aserifa (1986) 3 NWLR (Pt 30) 575, Iwuoha Vs NIPOST (2003) 8 NWLR (Pt 822) 308, Attorney General of Abia State Vs Attorney General, Federation & Ors (2005) 6 SC (Pt 1) 63, Ansa Vs Ntuk (2009) 9 NWLR (Pt 1147) 557. – Per H. A. O. Abiru, JCA
FACTS – WHEN PARTIES ARE DEEMED TO HAVE JOINED ISSUES OF A PARTICULAR FACT
It is elementary’ that a fact is only said to be in issue when it is asserted by one side and denied by the other side; it is only when this happens that parties have said to have joined issue of that fact – Galadima Vs State (2018) All FWLR (Pt 944) 663 at 701, Uzodinma Vs Ihedioha (2020) LPELR 50260(SC), Abba Vs Abba-Aji (2022) LPELR 56592(SC). The first and second Respondents did not assert in any part of their pleadings or in the evidence of their witnesses that the fourth Respondent did not give adequate notice of its primary election to the third Respondent and/or that the Appellant was not a member of the fourth Respondent at the time of the primary election. Issues could thus not have been joined on these facts. The questions asked and the answers elicited in the course of a trial are relevant and useful if they are in respect of issues joined by the parties. Otherwise, they go no issue and should be discountenanced —Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc
(2013) 9 NWLR (Pt 1358) 1.– Per H. A. O. Abiru, JCA
COURTS – CONDUCT OF COURTS TO PLEADINGS OF PARTIES
It is a firmly established principle of adjudication that the parties and the Court are bound by the case made out pleadings filed and exchanged by the parties and the evidence led thereon – Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Adamawa State Ministry of Land & Survey Vs Salisu (2021) 2 NWLR (Pt 1759) 1, Eweje Vs O. M. Oil Industry Ltd (2021) 4 NWLR (Pt 1765) 117, Wulangs Vs Central Bank of Nigeria (2021) 16 NWLR (Pt 1802) 195, Imaruagheru Vs Aiguokunrueghian (2021) 18 NWLR (Pt 1808) 307. The parties and the Court are also bound by the issues joined on the pleadings, the issues must be tried as settled as joined, and neither the parties nor the Court can go outside them to fish for other issues – Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389, Haladu Vs Access Bank Plc (2021) 13 NWLR (Pt 1794) 434, Mekwunye Vs Carnation Registrars Ltd (2021) 15 NWLR (Pt 1798) 1. Counsel to the parties are not allowed to create fresh issues in their final addresses by adding to the pleadings and/or introducing new evidence – Emeka Vs Inspector General of Police (2021) 10 NWLR (Pt 1785) 489 at 508, Uba Vs Ozigbo (2021) LPELR 56672(SC), Nwa-Anyajike Vs Independent National Electoral Commission (2023) LPELR 60317(SC). – Per H. A. O. Abiru, JCA
ADMISSION – WHERE FACTS ARE ADMITTED – ADMISSION BY CONDUCT
is elementary law that facts admitted need no further proof — Yonbish Vs Mwanmut (2020) 9 NWLR (Pt 1728) 149, Yonwuren Vs Modern Signs Ltd (2021) 14 NWLR (Pt 1795) 122, Mekwunye Vs Carnation Registrars Ltd (2021) 15 NWLR (Pt 1798) 1, Central Bank of Nigeria Vs Dinneh (2021) 15 NWLR (Pt 1798) 91. In Zaccala Vs Edosa (2017) LPELR 48034(SC), the Supreme Court, per Eko, JSC, reiterated that:
“The 2nd respondent was at the centre of the dispute between the appellant and the 1st respondent. Exhibit P was pleaded against him. He filed no statement of defence to join issues with the 1st respondent on the transaction evidenced by Exhibit P. This is an admission by conduct on the pleadings. In both common sense and law, facts not disputed are taken as admitted and therefore established. An admission is the best proof of the fact admitted. A fact admitted needs no further proof." – Per H. A. O. Abiru, JCATED – ADMISSION BY CONDUCT
COURTS – CONDUCT OF COURTS IN ADJUDICATION
It is also settled law that a Court can only adjudicate on the specific matters in dispute raised in the pleadings and evidence of the parties – Ewarawon Vs First Bank of Nigeria Plc (2020) 5 NWLR (Pt 1717) 268, Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124.
…The lower Court must have forgotten the admonition that, since the task of the Courts is adjudication and not investigation, a Court should not embark on the investigation of the documents within the hallowed rooms of its chambers to fish for information that was not demonstrated in open Court in the course of evidence led by the parties, and should not to use the facts so elicited to render its decision. InOnibudo Vs Akibu (1982) All NLR 207, the Supreme Court stated the point thus:
“It needs to be emphasized that the duty of a Court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of a Court to do cloistered justice by making an inquiry into the case, outside Court even if such inquiry is limited to the examination of documents which were in evidence, when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test in Court and were not such matters that, at least, must have been noticed in Court.”
This position of the law has been restated in several others cases, such as Jalingo Vs Nyame (1992) 3 NWLR (Pt 231) 538, Ugochukwu Vs Cooperative Bank (1996) 7 SCNJ 22, Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 552, Ilori Vs Tella (2007) All FWLR (Pt 393) 122, Omisore Vs Aregbesola (2015) LPELR- 24803(SC), Andrew Vs INEC (2017) LPELR 48518(SC). All the findings made by the lower Court on the facts on which the parties did not join issues and those that were not in dispute between were beyond the brief of the lower Court in the present case and they are perverse and cannot be allowed to stand. They are hereby all set aside. – Per H. A. O. Abiru, JCA
CANDIDATE – WHERE A CANDIDATES QUALIFICATION OR NOMINATION IS BEING QUESTIONED
Now, it is not in doubt that the question of whether a candidate is qualified to contest an election is both a pre election and a post election matter. However, there are two clear and separate situations. A distinction must be made between the provisions contained in Sections 65 and 66 of the Constitution of the Federal Republic of Nigeria on the qualification and disqualification of a person seeking to contest for a seat in the National Assembly and the procedure for nomination of candidates for an election. Qualification is a constitutional issue while nomination is regulated by the Electoral Act. Where the challenge is that the candidate was not a member of the political party and was not sponsored by the political party as its candidate in the election as required by Section 65(2)(b) of the 1999 Constitution, it is a post election matter. But where the challenge to the qualification of a candidate for election is predicated on the validity of his nomination process by his political party vis-a-vis the provisions of the Electoral Act, it is a pre-election matter – Jegede Vs Independent National Electoral Commission (2021) 14 NWLR (Pt 1797) 409, Action Peoples Party Vs Obaseki (2022) 13 NWLR (Pt 1846) 1 at 45, Faleke Vs Independent National Electoral Commission (2022) 13 NWLR (Pt 1543) 61, Oni Vs Oyebanji (2023) LPELR 60699(SC). – Per H. A. O. Abiru, JCA
NOMINATION AND SPONSORSHIP – WHERE NOMINATION AND SPONSORSHIP IS DEEMED TO HAVE TAKEN PLACE
It is settled law that the nomination and sponsorship of Appellant took place when his name was submitted by the fourth Respondent, as the winner of its primary election, to the third Respondent (INEC) as its candidate for the election – Kubor Vs Dickson (2012) LPELR 9817(SC), Gwede Vs INEC (2014) LPELR 23763(SC), Social Democratic Party Vs INEC (2023) LPELR 59836(SC), Sani Vs All Progressive Congress (2023) LPELR 60002(SC). – Per H. A. O. Abiru, JCA
NOMINATION – WHETHER ANOTHER PARTY OR ANOTHER PARTIES MEMBERS CAN COMPLAIN ABOUT THE NOMINATION OF A CANDIDATE
On the facts and circumstances of this case, the challenge of the first and second Respondents to the qualification of the Appellant to contest the election obviously had nothing to do with the constitutional provision in Section 65(2)(b) of the 1999 Constitution. It was predicated on validity of the process of nomination of the Appellant by the fourth Respondent on the strength of the provisions of the Electoral Act. As stated earlier, this is a pre-election issue and the law is that it cannot be a ground under Section 134(1) of the Electoral Act for disqualifying a candidate that has been nominated and sponsored by his political party for election — Shinkafi Vs Yari (2016) LPELR 26050(SC), Alhassan Vs Ishaku (2016) LPELR 40083(SC), Tarzoor Vs Ioraer (2016) 3 NWR (IT 1500) 463, Wada Vs Bello (2016) 19 NWLR (PT 1542) 374, Falake Vs Independent National Electoral Commission (2016) 18 NWLR (Pt 1543) 61, Jegede Vs Independent National Electoral Commission supra, Oni Vs Oyebanji supra.
Moreover, the only person who can bring a complaint against the validity of the nomination process of a political party is a party member or the party itself. It does not lie in the mouth of the member of another political party or that other political party to make such complaint like the first and second Respondents did in the present case — Yakubu Vs Independent National Electoral Commission (2008) LPELR 4350(SC), Jegede Vs Independent National Electoral Commission (2021) 14 NWLR (IT 1797) 409, Peoples Democratic Party Vs Ngbor (2023) LPELR 59930(SC), Uriah Vs Turner (2023) LPELR 60025(CA), All Progressive Congress Vs Independent National Electoral Commission (2023) LPELR 60098(SC), Peoples Democratic Party Vs Independent National Electoral Commission (2023) LPELR 60457(SC). – Per H. A. O. Abiru, JCA
MEMBERSHIP OF A POLITICAL PARTY – CONDUCT OF COURTS TO ISSUES OF MEMBERSHIP OF A POLITICAL PARTY
It should also be mentioned in passing that the 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 – Agi Vs PDP (2017) 17 NWLR (Pt 1595) 386, Tumbido Vs INEC (2023) LPELR 60004(SC), Enang Vs Asuquo (2023) LPELR 60042(SC), Sani Vs Galadima (2023) LPELR 60183 (SC), Onubogu Vs Anazonwu (2023) LPELR 60288(SC). – Per H. A. O. Abiru, JCA
It should also be mentioned in passing that the 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 – Agi Vs PDP (2017) 17 NWLR (Pt 1595) 386, Tumbido Vs INEC (2023) LPELR 60004(SC), Enang Vs Asuquo (2023) LPELR 60042(SC), Sani Vs Galadima (2023) LPELR 60183 (SC), Onubogu Vs Anazonwu (2023) LPELR 60288(SC). – Per H. A. O. Abiru, JCA
COURTS – CONDUCT OF COURTS IN INTERPRETING STATUTES
It is settled that in 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).
Also, neither a party nor a Court is allowed to expand the provisions of a statute, by the addition of words that are not provided therein, for the purpose of achieving a particular objective. The Court must stop where the statute stops. —Social Democratic Party Vs Independent National Electoral Commission (2023) LPELR 59836(SC), Tukur Vs Mustapha (2023) LPELR 60465(SC). In Alagbaoso Vs INEC & Ors (2023) LPELR 59702(SC), Garba, JSC, explained these 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 anti aim of the provisions. The duty of the Courts is to apply the provisions as they arc 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…”
Again, past decisions of the higher Courts are useful in the interpretation of the statutes only where they had interpreted the same or similar provisions of the statute. This is an offshoot of the principle of judicial precedent that postulates that established legal principles in decided cases are not to be applied across board and in all matters without regard for the peculiar facts and circumstances of a particular case – Abioye Vs Ismail (2023) LPELR 59828(SC), Refuge Homes Savings & Loans Ltd Vs Garkuwa (2023) LPELR 59982(SC), Oladiran Vs State (2023) LPELR 600009 (SC). – Per H. A. O. Abiru, JCA
ELECTION – WHEN A CANDIDATE SHOULD RESIGN/OTHERWISE LEAVE PUBLIC SERVICE TO QUALIFY TO PARTICIPATE IN AN ELECTION
Section 66(1)(f) of the 1999 Constitution (as amended) provides that “no person shall be qualified for election to the Senate or the House of Representatives if he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election.” A simple unbiased reading of the words of this provision show clearly that the “election” referred to therein is the general election conducted for the seats in the Senate and the House of Representatives. The provision has nothing to do with the internal elections within the political party. The Constitution does not, and has never been known to make provisions for the governance of the internal affairs of political parties. This point was explained in Olly Vs Tunji (2012) LPELR 7911(CA) pages 54-55 by Ogunwumiju, JCA, (as he then was) thus:
“… The above Section, given its literal meaning is quite clear. The ‘election’ referred to must be the election to the Senate or House of Representatives. It cannot refer to any other election outside the contemplation of that Section. It is not the business of the Court to enquire into the qualification of a candidate for the primaries. … The constitutional non qualification envisaged by Section 66(1)(f) of the Constitution in my humble view must be limited to the time frame relevant to the general election and not to the party primaries of the different political parties.
That is the only literal interpretation that would not lead to absurdity.” Again, in Dantiye Vs All Progressives Congress (2020) LPELR 51037(CA), this Court, per Oniyangi, JCA, opined thus” … In my understanding of the provision of Section 66(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria, all that is required by an aspiring contestant who is under employment in any public service of the Federation is to effectively resign from such service, 30 days before the date of such Election he is intending to contest. …”
Further, in the unreported decision in Appeal No CA/ABJ/CV/822/2023 — Abubakar Adaji Achimugu Vs All Progressives Congress & Ors – delivered on the 18th of August, 2023, this Court, interpreting similar provision in Section 182(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) on candidates seeking for election as Governor, expressed the same opinion that the election referred to was the general election and not the primary election of the political party. – Per H. A. O. Abiru, JCA
RESIGNATION – EFFECT OF DELIVERING A LETTER OF RESIGNATION
The law is settled beyond peradventure that a letter of resignation of an employee takes effect from the date it is delivered to and received by an employer or its agent —Benson Vs Onitiri (1960) SCNLR 177, Yesufu Vs Governor of Edo State (2001) 13 NWLR (Pt 731) 517, West African Examination Council Vs Oshionebo (2006) 12 NWLR (Pt 994) 258, Ibrahim Vs Abdallah (2019) 19 NWLR (Pt 1701) 293 at 315 C-E, Zarewa Vs Falgore (2020) 50870(CA), Dantiye Vs All Progressive Congress (2020) 51037(CA), Osho Vs Adeleye (2023) LPELR 59976(SC), Edun Vs Afuape (2023) 60018(CA). – Per H. A. O. Abiru, JCA
CONSTITUTION – THE UNCONSTITUTIONALITY OF S.84 (12) OF THE ELECTORAL ACT 2022 – INSTANCES WHEN THE COURT OF APPEAL CAN DEPART FROM ITS DECISIONS
More importantly, the constitutionality of the provision of Section 84(12) of the Electoral Act 2022 has been contested before this Court. In the case of Peoples Democratic Party Vs Edede (2022) 11 NWLR (Pt 1840) 55, also (2022) LPELR 57480(CA), this Court opined, albeit obiter, that the provision was discriminatory against political appointees and was thus contrary to the provision of Section 42(1)(a) of the 1999 Constitution (as amended). The issue was again presented before the Court in Appeal No CA/YL/241/2022 – Honorable Auwal D. Tukur Vs Alhaji Mustapha Ibrahim & 3 Ors and in a judgment delivered on the 3rd of February, 2023, this Court upheld its obiter opinion in PDP Vs Edede supra and pronounced the provision unconstitutional.
I was on the panel of Justices that heard the appeal and I stated in my contributory judgment thus:
“…Counsel to the Appellant has requested this Court, by his contention in this appeal, to affirm the position taken by this Court on the constitutionality of Section 84(12) of the Electoral Act in PDP Vs Edede supra. Counsel to the first Respondent and Counsel to the third Respondent have not urged this Court otherwise. The general tenure of the law is that once the Court of Appeal makes a decision or a statement of its guiding principles or renders an opinion on a subject, it is bound by it and must follow it, irrespective of the Panel or the Division of the Court of Appeal that decided the case…
The Court of Appeal can only depart from its previous decision in the following circumstances:
(i) where two decisions of the Court of Appeal are in conflict the Court must choose between them; (ii) where the Court of Appeal comes to the conclusion that a previous decision although not expressly overruled, cannot stand with a subsequent decision of the Supreme Court;
(iii) where the Court of appeal comes to the conclusion that a previous decision was given per incuriam, or ignorance of a statute or other binding authorities, the Court is not bound by it; and (iv) where the previous decision was decided without jurisdiction …
The opinion rendered by the Court in PDP Vs Edede supra on the non-constitutionality of Section 84(12) of the Electoral Act has not been shown to this Court to fall into any of the four situations where this Court can depart from same. I hereby adopt and affirm the opinion and hold that the provision of Section 84(12) of the Electoral Act is inconsistent with the provision of Section 42(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The provision is thus null and void and of no effect.” – Per H. A. O. Abiru, JCA
DEMOCRACY – MEANING OF DEMOCRACY – THE DUTY OF COURTS TO DEFEND DEMOCRACY
The term “democracy” comes from the Greek language and it means “rule by the (simple) people”. Democracy, as defined by the dictionary, is government by the people in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system. In the phrase of Abraham Lincoln, democracy is a government of the people, by the people, for the people. All democracies are systems in which citizens freely make political decisions by majority rule. Therefore, in every election, it is the wish and desire of the majority of the voters that must always be the determining factor. Any electoral system that subsumes, under any guise, the wishes of the majority in choosing the representatives of the people cannot be said to be democratic and fair. It is thus the responsibility of every player in the election process or electoral system of any democratic government, be he a participant, an organizer, a supervisor or in whatever capacity, to make laws, work the laws, operate the laws and interpret the laws in such a way that they enthrone at every stage of the process, the desires and wishes of the majority of the electorate. These are the higher ideals of the democratic process and it's by so doing that democratic ideal can be advanced and deepened in the society. A learned writer, Stephen Leacock, made this point in his article “Our Heritage of Liberty” (London: Bodley Head (1942) page 60 when he stated:
“… we must remember that no code or social legislation, no written law, can of itself guarantee true democracy and preserve liberty. The spring can rise no higher than its source. Democracy must continue to be fed from the altitude of the high ideals that founded it. … Democracy is a spirit.”
The Courts must take the leadership role in driving this spirit, and provide the pathway for others to follow, in the willingness to use the higher ideals in instilling the true democratic spirit in the Nigerian polity. The politicians and the political parties who are driven by selfish interests will not. – Per H. A. O. Abiru, JCA
COUNSEL – DUTY OF COUNSEL TO SUPPORT HIS ARGUMENTS IN ADJUDICATION
Counsel had an idea of the inherent faults in the judgment of the lower Court but was unable to properly articulate them and to present well-coordinated, sequenced and cogent legal arguments in support thereof. Counsel made no reference to decided case law authorities that were germane to the core issues in case of the Appellant. The Court had to practically do the entire research to get the requisite authorities on the core issues evident on the face of this appeal. This not right and it is unfair to the Court. – Per H. A. O. Abiru, JCA
ELECTION – WHETHER PRE-ELECTION ISSUES CAN BE USED TO DISQUALIFY A CANDIDATE THAT HAS BEEN NOMINATED AND SPONSORED BY HIS POLITICAL PARTY
…Thus, pre-election issue is not a ground under Section 134(1) of the Electoral Act for disqualifying a candidate that has been nominated and sponsored by his political party for election. – Per M. L. Shuaibu, JCA
SPONSORSHIP AND NOMINATION – CONDUCT OF COURTS TO SPONSORSHIP AND NOMINATION OF CANDIDATES
It is not in doubt that issues of qualification are both primary and post primary which a Court or Tribunal can venture into.
It has been held in a multiplicity of decided cases/authorities of both this Court and the Apex Court that it is the duty of a political party to determine its Candidate through a process of primary election. No Court has the power to delve into the issue of nomination by or of a Candidate chosen or nominated by a political party as that issue is non-justiciable and Courts lack jurisdiction. I seek to emphasize further that issues of sponsorship and nomination are matters which are completely within the internal consideration of a political party and it is not open to an outsider or even a party member who did not participate in the primaries to challenge same. It is a matter which comes within the domestic priority of the party and is within its sole discretion. Judicial authorities are numerous and well established that a Court is bereft of any jurisdiction to determine who a political party should sponsor as its candidate. See the cases of PDP & Anor vs. Timipre Sylva & Ors (2012) LPELR – 7814, (2012) 13 NWLR (Pt.1316) 88; Tarzoor vs. loraer & 2 Ors (2016) 3 NWLR (Pt. 1500) 463 at 498-499. The position of the law have been made clearer in Shinkafi vs. Yari (2016) 7 NWLR (Pt. 1511) 340. – Per Abdul-Azeez Waziri, JCA
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
