APP v. INEC (2021)

APP v. INEC

(2021)LCN/15154(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/ABJ/CV/91/2021

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

ACTION PEOPLES PARTY (APP) APPELANT(S)

And

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

INTERPRETATION OF THE PROVISIONS OF THE ELECTORAL ACT, 2010, AS TO THE EFFECT OF NON- COMPLIANCE WITH GUIDELINES ISSUED BY INEC NOTWITHSTANDING THE PROVISION OF THE ELECTORAL ACT 2010, AS AMENDED

From the onset it is important to have recourse to the provisions of both Sections 34 and 35 of the Electoral Act, 2010, as amended; they provide as follows: Section 34: “The commission shall, at least thirty days before the day of the election publish by displaying or causing to be displayed at the relevant office of the commission and on the commission’s website, a statement of the full names and addresses of all candidates standing nominated.” Section 35: “A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.” It is understandable for the trial Court to hold that these two Sections cannot be read in isolation of Sections 33 and 31 of the Electoral Act. There is indeed no ambiguity in any of these sections; and the law is well settled that where the wordings of a statute are found on examination to be clear and unambiguous, it is neither necessary nor permissible to look further; See NABHAM V. NABHAM (1967) 1 ALL NLR 47; TORIOLA V. WILLIAMS (1982) 7 S.C. 27; IFEZUE V. MBADUGHA (1984) 1 SCNLR 427; QUEEN V. ONUEGBE (1957) SCNLR 130 and LAWAL V. G.B. OLLIVANT (1972) 3 S.C. 124. It is a matter of common sense that when the language used is plain and also admits of only one meaning, the task of interpretation can hardly be said to arise. While Section 33 pointedly forbids a party from changing its candidate whose name has been submitted, pursuant to Section 31, it makes an exception where the change is necessitated by the death or withdrawal of that candidate; Section 35 on the other hand stipulates the procedure for withdrawal, to be in writing, signed and delivered by him to the political party that nominated him, and the party conveys such withdrawal to the Respondent, not later than forty-five days to the election. Section 153 on the other hand empowers the Respondent to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the Electoral Act, and for its administration. Learned counsel to the Appellant contends that PDP V INEC & ORS is distinguishable from this case at hand. I on the other hand find it to be appropriately suited to the circumstances of this case. The finding therein, that the approved guidelines for the conduct of elections, having been made by the Respondent, pursuant to the powers vested in it by Section 153 of the Electoral Act is part of the Electoral Act is apt, and non-compliance with the guidelines surely qualifies as non-compliance with the Electoral Act itself simplicita. That being so, the trial Court cannot be faulted for finding at page 127, that: “it therefore means that the last day for withdrawal by … political parties under exhibit INEC 1 is the 13th of July, 2020, notwithstanding anything in Section 35 of the Electoral Act 2010, as amended…since the plaintiff did not substitute the withdrawn candidate by the 13th of July, 2020 it is tantamount to non-compliance notwithstanding that the election was to hold on the 19th of September, 2020.” This finding is even more compelling when account is taken of the fact that the Supreme Court validated it in NDP V INEC (2013) 6 NWLR part 1350. It would therefore follow, from the decision in NDP V INEC supra, contrary to the contention of learned counsel to the Appellant, that the timetable is indeed a guideline with a force of law, because any action outside the timetable could be costly to any political party that is found wanting in that regard. At the risk of repetition it is important to stress that the guidelines issued by INEC having been made pursuant to Section 153 of the Electoral Act, 2010, as amended are binding on parties. The Appellant is bound as a result to comply with the timetable set out in exhibit INEC1; see ACTION ALLIANCE & ORS V INEC (2019) LPELR- 49364. PER MOHAMMED MUSTAPHA, J.C.A.

WHETHER A PLAINTIFF CAN RELY ON THE WEAKNESS OF THE DEFENDANT’S CASE WHICH SUPPORTS HIS OWN CASE, IN PROOF OF SAME

It is the law that unchallenged evidence is deemed admitted and evidence admitted need no further proof. A plaintiff may take advantage of the weakness of the defendant’s case as much as it supports his own case, in proof of same; SeeONOGWU V. STATE (1995) 6 NWLR PT. 401 PG. 276 and ODUNSI V. BAMGBALA (1995) 1 NWLR PT. 374 PG. 641. This position of the law however admits some exceptions. One of the exceptions to the general rule is that Courts do not grant declaratory reliefs as a matter of course in default of defence or admission of the adverse party without considering the evidence and being satisfied with same. The burden of proof on the plaintiff establishing his entitlement to the declaratory reliefs being sought is not removed even by the admission or non-defence of the defendant. In other words, the burden is on the party seeking a declaratory relief to establish his claim by satisfactory evidence; See DUMEZ NIG. LTD. V. NWAKHOBA (2008) 18 NWLR PT. 1119 PG. 361, CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR PT. 289 PG. 512, and CPC V. INEC (2011) LPELR-8257(SC), where the Supreme Court held thus: “The law however is trite as rightly found by the Court of Appeal in its judgment that a plaintiff like the Appellant in this case claiming declaratory reliefs, must rely on the strength of his own case and not on the weakness of the defence. This principle of law applies not only where the Defendant calls no evidence… but even where there is admission of the Plaintiff’s case by the Defendant.” PER MOHAMMED MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Federal High Court, Abuja by Hon Justice Taiwo O. Taiwo delivered on the 19th of January, 2021 in suit No FHC/ABJ/CS/858/2020 between Action Peoples Party and Independent National Electoral Commission, dismissing the suit; see pages 111 to 131 of the Record of Appeal.

Dissatisfied, the Appellant appealed by a Notice of Appeal filed on the 28th of January, 2021; the grounds shorn of the particulars are as follows:
GROUNDS OF APPEAL
GROUND ONE
The learned trial Judge erred in law and occasioned a miscarriage of justice against the Appellant when he held thus:
“It therefore means that the last day for withdrawal by candidates/replacement of withdrawn candidates by political parties under Exhibit INEC 1 is the 13th of July, 2020, notwithstanding anything in Section 35 of the Electoral Act 2010 as amended” at page 19 and 20 of the Judgment.
GROUND TWO
The learned trial Judge erred in law and occasioned a miscarriage of justice against the Appellant when he held thus:
”It is therefore my findings that since the

plaintiff did not substitute the withdrawn candidates by 13th of July, 2020, it is tantamount to non-compliance, notwithstanding that the election was to hold on the 19th of September, 2020.” At page 20 of the Judgment.
GROUND THREE:
The learned trial Judge erred in law and occasioned a miscarriage of justice when he failed to consider and be bound by the decisions of superior Courts cited to him by the Appellant.
GROUND FOUR:
The learned trial Judge erred in law and occasioned a miscarriage of justice against the Appellant when he held:
“Aside the letter dated the 5th of August, 2020 wherein the defendant stated the reason for rejection of the complaint of the plaintiff, there is nothing before the Court to show that exhibits APP2A to APP4 were received by the defendant as at the 13th of July, 2020. There is nothing on the documents before the Court especially exhibits APP2A to APP4 that the documents including the INEC statutory forms were received and acknowledged by the defendants.” At page 20 to 21 of the Judgment
GROUND FIVE:
The learned trial judge erred in law and occasioned a miscarriage of justice against the

Appellant when he held thus:
“From the forgoing, it is my finding the Plaintiff has failed to prove its case and thus this Court cannot resolve any of the questions for determination in its favour and therefore the reliefs being sought ought to fail. The case is therefore dismissed. I so hold. “At page 21 of the Judgment.
GROUND SIX:
The Judgment is against the weight of evidence.

From these grounds, the following issues were formulated for determination on behalf of the Appellant by Chikaosolu Ojukwu Esq., in the brief filed on the 8th of February, 2021:
1. Whether the Respondent’s electoral timetable can derogate, override or dethrone the express provision of Section 35 of the Electoral Act, 2010, as amended.
2. Whether the appellant proved its case before the lower Court?

T.M. Inuwa Esq., SAN, formulated the following issues on behalf of the Respondent in the brief filed on the 22nd day, of February, 2021:
1.Whether the exhibit INEC1 which is the timetable and schedule of activities for Edo State 2020 Governorship Election violates the provision of Section 35 of the Electoral Act, 2010, as amended.

Whether the appellant has, in the light of the evidence presented before the lower Court, established the case of exclusion.The issues formulated on behalf of either side are fundamentally the same, those for the Appellant are apt, and suffice for the determination of this appeal.
First, it is important at this juncture to note that the Respondent filed a notice to contend which it argued at pages 7 to 10 of the Respondents’ brief; urging this Court to strike out or dismiss this suit on grounds other than those of the trial Court. In response, the Appellant filed what it called a preliminary objection, which it argued in its reply brief.

On the issues of the preliminary objection and the Respondent’s notice; it is important from the onset to emphasize that the law is trite that the purpose of a preliminary objection is to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. Consequently, a successful preliminary objection terminates the appeal. In this appeal, the preliminary objection was filed against the Respondent’s notice to contend, by the Appellant; notwithstanding that, even if the preliminary

objection were to succeed, it takes nothing away from the appeal. A preliminary objection to the Respondent’s notice is not only inappropriate, but also unknown to law in the circumstances, in the sense that there is no room or provision for the filing of a preliminary objection by an Appellant. The procedure adopted by the Appellant is an aberration.
Flowing from the foregoing, the Appellant’s preliminary objection is incompetent and is hereby discountenanced and struck out.

The Respondent’s Notice of Intention to contend, filed on the 22nd day of February, 2021, on the other hand, is more of an appeal, against the decision of the trial Court. First, the judgment of the trial Court is essentially in favour of the Respondent. At trial, before judgment, the Respondent challenged the jurisdiction of the trial Court, on the ground that the suit offended Section 285 (9) of the 1999 Constitution, as amended. In its judgment, the trial Court dismissed the objection, see page 120 to 125 of the record of appeal.

Dissatisfied, the Appellant appealed by a Notice of Appeal filed on the 28th of January, 2021. The Respondent chose not to appeal any part of the judgment, until it filed its notice of intention to contend the 22nd of January, 2021.

The effect of the Notice of Intention to contend, it would appear is to challenge the decision of the trial Court dismissing the objection on the issue of whether the suit was statute barred at trial, without filing a cross appeal. The issue was indeed dealt with exhaustively by the trial Court when it held, among other things that:
“… I think it would it would be standing the law on its head for the Court to hold that the action is statute barred…l find no merit in the objection of the defendant that the action is statute barred by the operation of Section 285(9) (14) of the 1999 Constitution, as amended.”

The settled position of the law is that a Respondent’s notice cannot be used in place of an appeal. It would appear that the Respondent being dissatisfied with the decision of the lower Court in respect of his preliminary objection should have appealed against same; see LOPIN (NIG) LTD V. WEMA BANK PLC (2010) LPELR – 4440 (CA) and IGP V. IKPILA (2015) LPELR – 40630 (CA).

The bottom line is that any Respondent that seeks to set aside a decision of a lower Court can only do so by way of Cross Appeal, because a Respondent’s notice presupposes that the Respondent is satisfied with the decision of the lower Court, in this case, on the contention that the suit is statute barred. The Respondent cannot therefore seek to affirm what is not in his favour on other grounds in this case.
The Respondent’s notice in this case is incompetent in the considered opinion of this Court and is accordingly struck out without much ado.

The substantive appeal:
The two issues will be taken together.
It is submitted for the Appellant that the import of the decision of the trial Court is to elevate the Respondent’s timetable over and above the express provisions of the Electoral Act, from whence the timetable made by the Respondents derives its validity.

That the interpretation of the trial Judge did not flow from a holistic reading of the Electoral Act, if it did, it would have taken into account the need to read statute as a whole in determining the object of a particular provision;RABIU V KANO STATE (1980) 8-11 SC and AG Lagos STATE V AGF (2014) ALL FWLR part 740 page 1296.

That a community reading of Sections 33 and 35 of the Electoral Act will reveal that the intention of the lawmakers was to allow political parties, in the event of the death or withdrawal of their candidates, to substitute such candidates not later than forty-five days to the date of the election.

That being an Act of the National Assembly, the provisions of the Electoral Act, 2010, as amended have higher statutory status than the time table guidelines; OKEREKE V UMAHI (2016) LPELR-40035-SC, GOVERNOR OF OYO STATE V FOLAYAN (1995) LPELR-3179-SC and NYESOM V PETERSIDE (2016) 7 NWLR part 1512 part.

That also the procedure stipulated in the express provision of Section 35 of the Electoral Act is that for a substitution to be valid, it must have been done not later than 45 days to the election;WADA V BELLO (2016) 17 NWLR part 1542 page 453; and once a party complies by taking all the necessary steps, the substitution becomes valid, and the Respondent’s timetable cannot operate to dethrone the explicit statement of the law in Section 35 of the Electoral Act.

That also the trial Court failed to consider the decisions of the Supreme Court submitted by the Appellant, and this failing breached the Appellant’s right to fair hearing and occasioned a miscarriage of justice.

That the case of the appellant was never that the Respondent received its notices of withdrawal and substitution on the 13th of July, 2020, but that it substituted its withdrawn candidates not later than 45 days to the election, and notified the Respondent, but the Respondent refused to accept the substitution; ADEJUGBE V OLOGUNJA (2004) 6 NWLR part 868 page 46 and MR V.O. OLA JEGEDE & ORS V OLUWASESAN (2011) LPELR-8981- CA.

That the decision of the trial Court is perverse because it failed to properly evaluate the only evidence before it on the submission of names for substitution; when a proper evaluation of the appellant’s case would have shown that the appellant had in fact by affidavit evidence proved that the exhibit APP5 which contains exhibits APP 2-4 series attached as annexures was received by the Respondent.

That in the face of the uncontroverted affidavit evidence of the Appellants, the learned trial Judge had inadvertently placed on the Appellant, a higher evidential, burden than placed on the appellant by the law; ZUBAIRU & ANR V MOHAMMED & ORS (2009) LPELR-5124-CA.

It is submitted for the Respondent in response, while referring the Court to NDP V INEC (2013) 6 NWLR part 1350, FALEKE V INEC (2016) 18 NWLR part 1543; SHINKAFI V YARI (2016) 7 NWLR part 1511 and PPA V INEC (2010) 12 NWLR part 1207, that the authorities cited by the appellant do not support its case and that the arguments of the Appellant will not hold water in the face of established principles in NDP V INEC and ACTION ALLIANCE V INEC.

That there was no point joining issues with the Appellant in view of the Appellant’s failure to appreciate submission and substation of candidates, and their laid down procedure;PDM V INEC (2020) 17 NWLR part 1753.

Also, that the letter of complaint cannot amount to submission of the substitution of the candidate of the Appellant; PDM V INEC; especially as the Appellant is claiming declaratory reliefs, which have to be proved to the satisfaction of the Court, even in the face of admission that the Appellant is entitled to it.

RESOLUTION OF ISSUES ONE & TWO:
From the onset it is important to have recourse to the provisions of

both Sections 34 and 35 of the Electoral Act, 2010, as amended; they provide as follows:
Section 34:
“The commission shall, at least thirty days before the day of the election publish by displaying or causing to be displayed at the relevant office of the commission and on the commission’s website, a statement of the full names and addresses of all candidates standing nominated.”
Section 35:
“A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for election and the political party shall convey such withdrawal to the commission not later than 45 days to the election.”
It is understandable for the trial Court to hold that these two Sections cannot be read in isolation of Sections 33 and 31 of the Electoral Act. There is indeed no ambiguity in any of these sections; and the law is well settled that where the wordings of a statute are found on examination to be clear and unambiguous, it is neither necessary nor permissible to look further; See NABHAM V. NABHAM (1967) 1 ALL NLR 47; TORIOLA V. WILLIAMS (1982) 7 S.C. 27; IFEZUE V. MBADUGHA (1984) 1 SCNLR 427; QUEEN V. ONUEGBE (1957) SCNLR 130 and LAWAL V. G.B. OLLIVANT (1972) 3 S.C. 124.

It is a matter of common sense that when the language used is plain and also admits of only one meaning, the task of interpretation can hardly be said to arise.
While Section 33 pointedly forbids a party from changing its candidate whose name has been submitted, pursuant to Section 31, it makes an exception where the change is necessitated by the death or withdrawal of that candidate; Section 35 on the other hand stipulates the procedure for withdrawal, to be in writing, signed and delivered by him to the political party that nominated him, and the party conveys such withdrawal to the Respondent, not later than forty-five days to the election.
Section 153 on the other hand empowers the Respondent to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the Electoral Act, and for its administration.
Learned counsel to the Appellant contends that PDP V INEC & ORS is distinguishable from this case at hand. I on the other hand find it to be appropriately suited to the circumstances of this case. The finding

therein, that the approved guidelines for the conduct of elections, having been made by the Respondent, pursuant to the powers vested in it by Section 153 of the Electoral Act is part of the Electoral Act is apt, and non-compliance with the guidelines surely qualifies as non-compliance with the Electoral Act itself simplicita.
That being so, the trial Court cannot be faulted for finding at page 127, that:
“it therefore means that the last day for withdrawal by … political parties under exhibit INEC 1 is the 13th of July, 2020, notwithstanding anything in Section 35 of the Electoral Act 2010, as amended…since the plaintiff did not substitute the withdrawn candidate by the 13th of July, 2020 it is tantamount to non-compliance notwithstanding that the election was to hold on the 19th of September, 2020.”
This finding is even more compelling when account is taken of the fact that the Supreme Court validated it in NDP V INEC (2013) 6 NWLR part 1350.
It would therefore follow, from the decision in NDP V INEC supra, contrary to the contention of learned counsel to the Appellant, that the timetable is indeed a guideline with a force of law,

because any action outside the timetable could be costly to any political party that is found wanting in that regard. At the risk of repetition it is important to stress that the guidelines issued by INEC having been made pursuant to Section 153 of the Electoral Act, 2010, as amended are binding on parties. The Appellant is bound as a result to comply with the timetable set out in exhibit INEC1; see ACTION ALLIANCE & ORS V INEC (2019) LPELR- 49364.
I agree with learned counsel to the Respondent that GOV OF OYO STATE V FOLAYAN supra as well asOKEREKE V UMAHI AND EVEN NYESOM V PETERSIDE referred to by the Appellant are authorities on the use of card reader only; the facts of those cases do not match the circumstances of this case, as such they cannot be fitting authorities in this case.
Furthermore, the cases of GWEDE V INEC, KUBOR V DICKSONas well as WADA V BELLO all cited by learned counsel to the Appellant in support of his contention do not support his case, because none of them suggests that the party substituting a candidate can do so without recourse to the time fixed by the Respondent. As a matter of fact the substitution in GWEDE appears to be within time and received within time, although, the name was not put on the ballot.

In spite of learned counsel to the Appellant’s vehement contention, it does appear, as submitted for the Respondent that a careful scrutiny of the exhibits attached to the originating summons, at pages 10 to 39 of the record of appeal is quite revealing, to say the least, because there is nothing to indicate, with clarity that these documents were indeed submitted to the Respondent on the 21st of July, 2020. Now, if the Appellant failed to follow laid down procedure, it would then matter very little whether or not the Respondents joined issues with them in this regard.
It is very important not to lose sight of the fact that nomination of a candidate can be said to be completed the moment INEC receives the requisite documents from the political party, within the stipulated time; GWEDE V INEC supra.
It is for these reasons that the I find trial Court’s finding impeccable when it held that:
“…since the plaintiff did not substitute the withdrawn candidate by the 13th of July, 2020 it is tantamount to non-compliance notwithstanding that the election was to hold on the 19th of September, 2020.”

I do not think the trial Court misconstrued the case of the Appellant as contended, on the contrary, the trial Court was apt it its understanding of the case before it.
The trial Court’s depth of understanding of the circumstances of this case is exemplified by its finding that:
“…the plaintiff has failed to prove its case and this Court cannot resolve any of the questions for determination in its favour…”
This conclusion was informed by the finding, from the evidence available that:
“Aside the letter dated the 5th of August, 2020, wherein the defendant stated the reason for the rejection of the complaint of the plaintiff, there is nothing before the Court to show that exhibits APP2A to APP4 were received by the defendant as stated on the 13th of July, 2020. There is nothing on the document before the Court especially exhibits APP2A to APP4 that the documents including the INEC statutory forms were received and acknowledged by the defendant.”
There is no doubt that exhibit INEC1 complies with the provisions of the Electoral Act, 2010, as amended. The document breathes

the Electoral Act; every aspect of the said exhibit refers to a section of the Electoral Act; and the 13th of July, 2020 fixed by the Respondent for the substitution and withdrawal of candidates has to take into account the 45 days to the election, failing which the Appellant is out on a limb.

Besides, as rightly contended for the Respondent, a party that seeks declaratory reliefs, as the Appellant in this case, has to prove his case to the satisfaction of the Court, and to win or lose on the sheer strength of his case and not the weakness of the defense, even in the face of admission that he is entitled to the reliefs sought.
The Appellant sought declaratory reliefs by way of remedy.
The Appellants seeking declaratory reliefs must prove same and not rely on the weakness of the Respondent’s case. It is the law that unchallenged evidence is deemed admitted and evidence admitted need no further proof. A plaintiff may take advantage of the weakness of the defendant’s case as much as it supports his own case, in proof of same; SeeONOGWU V. STATE (1995) 6 NWLR PT. 401 PG. 276 and ODUNSI V. BAMGBALA (1995) 1 NWLR PT. 374 PG. 641. This position of

the law however admits some exceptions. One of the exceptions to the general rule is that Courts do not grant declaratory reliefs as a matter of course in default of defence or admission of the adverse party without considering the evidence and being satisfied with same. The burden of proof on the plaintiff establishing his entitlement to the declaratory reliefs being sought is not removed even by the admission or non-defence of the defendant. In other words, the burden is on the party seeking a declaratory relief to establish his claim by satisfactory evidence; See DUMEZ NIG. LTD. V. NWAKHOBA (2008) 18 NWLR PT. 1119 PG. 361, CHUKWUMAH V. SHELL PETROLEUM (1993) 4 NWLR PT. 289 PG. 512, and CPC V. INEC (2011) LPELR-8257(SC), where the Supreme Court held thus:
“The law however is trite as rightly found by the Court of Appeal in its judgment that a plaintiff like the Appellant in this case claiming declaratory reliefs, must rely on the strength of his own case and not on the weakness of the defence. This principle of law applies not only where the Defendant calls no evidence… but even where there is admission of the Plaintiff’s case by the Defendant.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant as rightly found by the trial Court, failed to prove its entitlement to the declaratory reliefs sought. Accordingly, issues one and two are resolved in favour of the Respondent, against the Appellant.

Having resolved the two issues that call for determination in this case in favour of the Respondent, against the Appellant, the appeal fails for lack of merit, and it is accordingly dismissed. Judgment of the trial Federal High Court, Abuja delivered on the 19th day of January, 2021 by Hon Justice Taiwo O. Taiwo in suit No FHC/ABJ/CS/858/2020 is hereby affirmed.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the lead Judgment of my learned brother Mustapha JCA just delivered. I agree that there is no merit in this appeal and therefore, ought to be dismissed. I dismiss this appeal and I affirm the Judgment of the trial Court delivered on 19th January, 2021 in Suit No. FHC/ABJ/CS/858/2020.
No order as to costs.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Chikaosolu Ojukwu Esq. with him, Temitayo Lasaki For Appellant(s)

S. Philip Esq. with him, R. Y. Yusuf For Respondent(s)