HARUNA v. PDP & ANOR
(2022)LCN/16781(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, December 29, 2022
CA/G/197/2022
Before Our Lordships:
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
ALHAJI ADO HARUNA APPELANT(S)
And
1. PEOPLES DEMOCRATIC PARTY (PDP) 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHEN A DECISION OF THE COURT IS SAID TO BE PERVERSE
It has been held that a decision is said to be perverse when the finding and conclusion reached by a Court cannot be supported having regard to the law and evidence before it or where the Court took into account issues which were never canvassed or properly presented before it.
In the case of UDENGWU VS. UZUEGBU (2003) FWLR (PT. 179) 1173; (2003) 7 SCNJ 145 AT 153, the Supreme Court described what a perverse finding of a Court is as follows:
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence or that it misconceived the thrust of the case presented or took irrelevant matters into account which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merits of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably in all this, a miscarriage of justice, and the decision must be set aside on appeal.”
See also the Supreme Court decisions in the cases of MINI LODGE LIMITED VS. CHIEF OLUKA OLAKA NGEI (2010) ALL FWLR (PT. 506) 1806 AT 1834; EMEKA VS. STATE (2014) ALL FWLR (PT. 751) 1480; EMMANUEL VS. UMANA (2016) ALL FWLR (PT. 856) 214 AT 271; WUYAH VS. JAMA’A LOCAL GOVERNMENT, KAFANCHAN (2013) ALL FWLR (PT. 695) 1171 AT 1196 and OSUJI VS. EKEOCHA (2009) ALL FWLR (PT. 490) 614. PER IDRIS, J.C.A.
THE POSITION OF LAW ON THE INTERPRETATION OF STATUTES
The law on interpretation of statutes is clear that in the interpretation of clear and unambiguous provisions of any statute, the plain and ordinary meaning will be given to it. In the case of UGWU VS. ARARUME (2007) 7 MJSC 1, AT 83 – 84, the Supreme Court held on the interpretation of statute, that:
“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declared the intention of the legislature. The Court can elicit that intention from the actual words of the statute. Lord Greene M.R. once observed:
“If there is one rule of constitution for statute and other documents; it is that you must imply any in them which is inconsistent with the words expressly used.” See R. A. Debtor (No. 335) of 1947 (1948) 2 E. R. 5333 at P. 536.
Thus, where the language of the statute is clear and explicit, the Court must give effect to it, for in that case, the words of the statute speak the intention of the legislature. The Court must bear in mind that its function in that respect is JUS DICERE, not JUS DARE and the words of a statute must not be over noted by judges, but reform of the law must be left in the hand of the legislature…”
See also, the cases of UGBA VS. SUSWAM (2013) 4 NWLR (PT. 1345) 427 AT 474; HON. ATT. GEN, LAGOS VS. ATT. GEN OF THE FED. (2014) ALL FWLR (PT. 740) 1296 AT 1331 and IBE VS. NKIRU UGO CHUKWU & 41 ORS (2010) ALL FWLR (PT. 504) 1590 AT 1604. PER IDRIS, J.C.A.
THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE PLACED BEFORE IT
Thus, the failure of the trial Court to apply the law and evidence before it properly and also to interpret the law i.e. the Electoral Act, 2022 properly, influenced the Court in arriving at the perverse decision it did which occasioned a miscarriage of justice. See the case of OGUNTAYO VS. ADELAJA (2009) ALL FWLR (PT. 495) 1626 AT 1661.
The trial Court also failed in its duty to properly evaluate the evidence before it. In the case of SKYE BANK PLC VS. AKINPELU (2010) ALL FWLR (PT. 526) 460 AT 453, the Supreme Court held on evaluation of evidence, that:
“In the evaluation of evidence, a trial Court has a duty to evaluate all the evidence before it and not just some of them…”
Thus, if the trial Court had evaluated the evidence before it, it would have found out that as at the 18th day of August, 2022 when the 1st Respondent herein wanted to access the website of the 2nd Respondent, and take into consideration the period from the 18th August, 2022 to the 11th of March, 2023 when the general election will take place which is 207 days, and the provision of S. 31 of the Electoral Act, 2022, the trial Court would have arrived at a different conclusion from the one it did. I therefore hold that the lower Court did not evaluate properly the evidence and the law before it, and so this Court will interfere with the evaluation and findings made by the trial Court.
In the case of ADEYEMO VS. ADEYEMO (2011) ALL FWLR (PT. 584) 121 AT 137 – 138, it was held that:
“An appellate Court would only interfere with the evaluation of evidence and findings of a trial Court where such evaluation and findings of fact are not based on a proper and dispassionate appraisal of the evidence given in support of such party’s case or are perverse where on the face of the record justice has not been done in the case…” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, sitting at the Maiduguri Judicial Division on the 24th day of October, 2022 wherein the lower Court refused the plaintiff’s (Appellant herein) claim and dismissed same.
The facts of the case is to the effect that following the withdrawal of Madu Lawan Marama’s candidature as the 1st Respondent’s candidate for the Hawul State Constituency of the Borno State House of Assembly for the 2023 General Election, the 1st Respondent herein, in compliance with the provision of Section 84(1) of the Electoral Act, 2022 conducted primary elections for Member, Borno State House of Assembly representing Hawul State constituency on the 12th day of August, 2022 where the Appellant herein was returned unopposed and was duly retuned as the candidate of the party.
On the 18th day of August, 2022 the 1st Respondent herein set out to upload the details of the candidate who earlier withdrew his candidature and to submit the name of the new candidate i.e. ALHAJI ADO HARUNA, the Appellant herein, but met the portal of the 2nd Respondent herein closed.
That upon inquiry, the 1st Respondent and the Appellant were duly informed that the 1st Respondent herein closed its portal since the 12th day of August, 2022 in accordance with its Timetable and Guidelines. And that as at the 12th day of August, 2022 when the 2nd Respondent closed its portal, the number of days left to the election of Governorship and House of Assembly elections was more than 90 (ninety) days and that Section 31 of the Electoral Act, 2022 permits the withdrawal and nomination of candidates for that election.
The Appellant, aggrieved by the refusal of the 2nd Respondent herein to open its portal to enable him upload his personal details as the candidate of the 1st Respondent for the position of Member Borno State House of Assembly for the Hawul State Constituency approached the Federal High Court of Nigeria sitting at the Maiduguri Division for redress through an originating summons dated the 23rd day of August, 2022 and filed on the 24th day of August, 2022.
In the originating process, the Appellant posed a single question for determination as follows:
“whether having regards to the clear and unambiguous provisions of Section 31 and 33 of the Electoral Act, the reliance on the 2nd Defendants on its (sic) guideline for the 2023 general election in closing its portal for the upload of withdrawal and replacement of candidates for a member State House of Assembly on 12/8/2022 is not illegal ultra vires and null and void.”
The Appellant therefore sought for the following reliefs before the lower Court thus:
1. A declaration that the act of the 2nd defendant of closing its portal on 12/8/2022 as a result of which the 1st defendant could not be able to convey the withdrawal of its earlier candidate for the member Borno State House of Assembly representing Hawul State Constituency and submission of the name of the plaintiff as the nominated candidate replacing the withdrawn candidate to the 2nd Defendant on 18/8/2022 relying on the guidelines for the 2023 general election is ultra vires null and void.
2. A declaration that the plaintiff is entitled (sic) to be nominated and recognized (sic) as the candidate of the 1st Defendant for the Member Borno State House of Assembly representing Hawul State Constituency in the 2023 general election.
3. An order directing the 2nd defendant to re-open its portal to the 1st defendant to upload into the portal the withdrawal of its earlier candidate for the Member Borno State House of Assembly representing Hawul State Constituency and submission of the name of the plaintiff as the candidate replacing the withdrawn candidate in the 2023 general election.
4. An order directing the 2nd defendant to recognize and publish the name of the plaintiff as the candidate of the 1st defendant for the Member Borno State House of Assembly representing Hawul State Constituency in the 2023 general election.
Upon service of the originating process, the 1st Respondent entered an appearance and filed no process, while the 2nd Respondent entered an appearance and filed a 7 (seven) paragraph counter affidavit to the claims of the Plaintiff/Appellant.
The Plaintiff/Appellant’s claim proceeded to hearing wherein processes filed were accordingly adopted and the case was adjourned for judgment.
In a considered judgment delivered on the 24th day of October, 2022, the learned trial Judge refused the plaintiff’s claim and accordingly dismissed same.
Dissatisfied with the judgment of the Court below, the Appellant herein appealed to this Court vide his Notice and Grounds of Appeal dated the 28th day of October, 2022 and filed on the 31st day of October, 2022.
The Appellant filed his Appellant’s Brief of Argument wherein these 2 (two) issues were formulated as follows:
1. Whether a Guideline, Regulation or Time Table issued pursuant to the provision of Section 148 of the Electoral Act, 2022 can override and/or supersede the clear and unambiguous provisions of Sections 31 and 33 of the Electoral Act, 2022.
2. Whether the findings of the trial Federal High Court and the apparent misapplication of the law vis-à-vis the clear and undisputed evidence before it are not perverse and ought to be interfered with by this Honourable Court.
On issue one, the learned counsel for the Appellant submitted that the law is settled that a Guideline, Regulation or Time Table made pursuant to the provisions of an Act of parliament, and in this case, the Electoral Act, 2022, cannot override the extant provisions of the main law or Act.
It was submitted further that the Guideline and Time Table issued by INEC (the second Respondent herein) which was made and issued pursuant to the provisions of Section 48 of the Electoral Act, 2022 cannot under whatever circumstance override Sections 31 and 33 of the Electoral Act, 2022.
The learned Appellant’s counsel submitted further that Exhibits “INEC 1” and “INEC 2” which are the Guidelines and Time Table issued by INEC pursuant to the provision of Section 148 of the Electoral Act, 2022 which the trial Court relied on in arriving at its decision is wrong as the Guidelines and Time Table made pursuant to the provision of the Electoral Act, 2022 cannot override the extant provisions of Sections 31 and 33 of the Act.
On issue two, it was submitted that the trial Court was wrong in law to have equated/rated and/or interpreted the Guideline and Time Table issued by INEC far above the extant provisions of Sections 31 and 33 of the Electoral Act, 2022. And that the finding and holding of the trial Court that the Guidelines and Time Table issued by the 2nd Respondent has been violated where the clear and unambiguous provisions of Section 31 and 33 of the Electoral Act, 2022 allows for the doing of the act asked for is a perverse finding which cannot stand.
It was argued that the failure of the trial Court to correctly interpret Sections 31 and 33 and also Section 148 of the Electoral Act, 2022 and the position of the law on regulations, Time Table and/or Regulation made pursuant to law is wrong in law and should be set aside.
Learned counsel for the Appellant contended that the legal authorities relied upon by the trial Court in arriving at its decision are not correct as they are clearly distinguishable from the instant case under consideration. It was submitted that the trial Court failed in its duty to properly evaluate the evidence before it and to also interpret the relevant law before arriving at the erroneous decision it made.
It was submitted further that the failure of the trial Court to properly evaluate the evidence before it and the law, has occasioned a serious miscarriage of justice. And that this Court can interfere in the non-evaluation of the evidence and to also correctly interpret the provisions of the Electoral Act, 2022 which the trial Court failed to do.
Learned counsel for the Appellant submitted finally, that the evaluation of evidence this Court is called upon has nothing to do with the demeanor of witnesses as the case at the Court below was fought on affidavit evidence.
The Appellant’s counsel relied on the following legal authorities:
LIST OF STATUTES
1. ELECTORAL ACT, 2022
LIST OF JUDICIAL AUTHORITIES CITED
1. JEGEDE VS. INEC (2021) 14 NWLR (PT. 1797) 409
2. UGO VS. UMMUNA (2018) ALL FWLR (PT. 926) 35
3. UDENGWU VS. UZEGBU (2003) FWLR (PT. 179) 1173
4. MINI LODGE LIMITED VS. CHIEF OLAKA NGEI (2010) ALL FWLR (PT. 506) 1806 AT 1834
5. EMEKA VS. STATE (2014) ALL FWLR (PT. 757) 1480 AT 1495
6. UGWU VS. ARARUME (2007) 7 MJSC 1 AT 83 – 84
7. OGUNTAYO VS. ADELAJA (2009) ALL FWLR (PT. 495) 1626 AT 1661
8. ADEYEMO VS. ADEYEMO (2011) ALL FWLR (PT. 584) 121 AT 131 – 138
9. OBEDU VS. ITIE (2011) ALL FWLR (PT. 553) 185 AT 1893 – 1894
10. BARRISTER MAGAJI HENRY DANJUMA VS. SCC NIG. LTD & 2 ORS (2018) ALL FWLR (PT. 924) 58 AT 103
The Court was urged to allow the appeal, set aside the decision of the trial Court and grant the Appellant’s reliefs as sought in his originating summons.
The Respondents on their own part did not file any process in response to the submissions contained in the Appellant’s brief.
RESOLUTION OF THE ISSUES
I have carefully read and summarized the arguments of the learned counsel for the Appellant contain in the Appellant’s brief of argument. I shall now proceed to determine this appeal and in doing so I shall adopt the issues for determination distilled by the Appellant. The said issues are reproduced hereunder again as follows:
1. Whether a Guideline, Regulation or Time Table issued pursuant to the provision of Section 148 of the Electoral Act, 2022 can override and/or supersede the clear and unambiguous provisions of Sections 31 and 33 of the Electoral Act, 2022.
2. Whether the findings of the trial Federal High Court and the apparent misapplication of the law vis-à-vis the clear and undisputed evidence before it are not perverse and ought to be interfered with by this Honourable Court.
ISSUE ONE
The trial Court, in arriving at its decision held at pages 90 – 91 of the Record of Appeal as follows:
“… It is pursuant to the powers donated to INEC by Section 148 that the Commission issued to all registered political parties including the 1st Defendant the Time Table and schedule of activities for the 2023 General Elections and the Guidelines for Nomination of candidates for election (attached to the 2nd Defendant Counter Affidavit as Exhibits “INEC 1” and “INEC 2” respectively). The approved Time Table and Guidelines having been made by INEC pursuant to the power vested in INEC by Section 148 of the Electoral Act is part of the Electoral Act and non-compliance with the Time Table and Guidelines surely qualifies as non-compliance with the Electoral Act itself simplicita.
It therefore means that the last date allowed for withdrawal by a candidate and his replacement to be posted on the INEC website by the 1st Defendant is 12th day of August, 2022 as provided for in Exhibits “INEC 1” and “INEC 2” notwithstanding the provision of Section 31 of the Electoral Act 2022. Since the 1st Defendant (PDP) did not upload the withdrawal of the former candidate of the party for the election and upload the name of the plaintiff by the deadline of 12th August, 2022 but rather attempt to do so on the 18th August, 2022 it is tantamount to non-compliance notwithstanding that the election is to hold on the 11th of March, 2023. The above 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 (pt 1350) 392. I hold that the INEC Time Table (Exhibit “INEC 1” is indeed a guideline with a force of law because any action outside the Time Table 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 time table and guidelines issued by INEC having been made pursuant to Section 148 of the Electoral Act, 2022 are binding on parties. The plaintiff and 1st Defendant are bound as a result to comply with the time table set out in Exhibit “INEC 1”…”
At pages 92 – 93 of the Record of Appeal, the learned trial Judge while trying to justify the decision he arrived at, held:
“… However, the Time Table (Exhibit “INEC 1”) in paragraph 6 expressly stipulates a deadline for substitution which is 12th August, 2022. I am of the view that Section 31 cannot be read in isolation but in conjunction with paragraph 6 of the time table the cumulative effect of which is that a party which intends to not only withdraw a candidate but to also substitute the withdrawn candidate must also strictly comply with the Time Table. This is so because the Time Table and Guidelines of INEC made pursuant to Section 148 of the Electoral Act have the same force of law as the Electoral Act, 2022. See APP V. INEC (SUPRA) and ACTION ALLIANCE & ORS V. INEC (SUPRA)
The plaintiff by his showing particularly in paragraph 3(xii) of the affidavit in support of the originating summons admitted that it was the 18th of August, 2022 that the 1st Defendant attempted to upload into the INEC portal the withdrawal of its earlier candidate and to submit the name of the plaintiff as replacement. This is clearly 6 days after the deadline for withdrawal and substitution of candidates.
The plaintiff’s affidavit evidence shows that the fresh primary election which he won unopposed was conducted on the 12th of August, 2022. One wonders why the 1st Defendant who conducted the fresh primary elections and who submitted the names of all of their other nominated candidates, before the deadline did not upload the plaintiff’s name on the INEC portal immediately knowing that the 12th August, 2022 was the last date for withdrawal and substitution of candidates by political parties. The plaintiff and the 1st Defendant only have themselves to blame for the non-compliance with the INEC Time Table in that regard…”
Having reproduced above, the findings of the learned trial Judge regarding the claim before the trial Court, it is pertinent to examine the relevant sections of the Electoral Act, 2022. Sections 31 and 33 of the Electoral Act, 2022 provides:
31. A candidate may withdraw his or her candidature by notice in writing signed by him and delivered personally by the candidate to the political party that nominated him for the election and the political party that nominated him shall convey such withdrawal to the commission not later than 90 days to the election.
33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted under Section 29 of this Act, except in the case of death or withdrawal by the candidate:
Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the commission for the election concerned.
At this juncture, it is pertinent to examine the document and affidavit evidence of the Appellant who was the plaintiff at the Court below found at pages 4 – 41 of the Record of Appeal. From the case, as presented by the Appellant as plaintiff in the lower Court, the following are not in dispute, namely:
(a) That there was an application for withdrawal of the candidature of Modu Lawan Marama, the earlier nominated candidate for the 1st Defendant for the Hawul State Constituency of the Borno State House of Assembly.
(b) That following the withdrawal of the candidature of Modu Lawan Marama, primary election was held in compliance with the provision of Section 33 of the Electoral Act, 2022. The primary elections was held on the 12th day of August, 2022 wherein the Appellant herein was returned unopposed as the candidate for the Hawul State Constituency of the Borno State House of Assembly.
(c) That the 1st Defendant now in possession of all the relevant documents of the withdrawal and the result of the fresh primary election held on the 12th day of August, 2022 approached the 2nd Defendant/Respondent, to wit: Independent National Electoral Commission, INEC, to upload the substituted candidate on the 18th day of August, 2022.
(d) That the election, the subject matter of the case, is that of Member, Borno State House of Assembly for Hawul State Constituency.
(e) That election into Member of State House of Assembly is scheduled to hold on the 11th day of March, 2023.
(f) That from the 18th day of August, 2022 to the 11th day of March, 2023 is two hundred and seven (207) days.
(g) That all the events the subject matter of the case occurred more than 90 days to the date of the election as required by Section 31 of the Electoral Act, 2022.
(h) That the trial Court relied heavily on the documents exhibited as “INEC 1” and “INEC 2” which are the Guideline and Time Table issued by INEC pursuant to Section 148 of the Electoral Act, 2022.
(i) That the trial Court gave more credence to the guideline and Time Table issued by INEC pursuant to the provision of Section 148 of the Electoral Act, 2022 more than the extant provision of Section 31 and 33 of the Act.
(j) That the Appellant who was the Plaintiff at the trial Court was not in breach of any of the provisions of the Electoral Act, 2022, particularly Sections 31 and 33 thereof.
From the totality of the analysis made of the case of the Appellant who was the plaintiff at the trial Court, it is clear that the Appellant complied fully with the extant provisions of the Electoral Act, 2022 and the trial Court was in grave error to have given more credence and/or power to the Guidelines and Time Table issued by the 2nd Respondent rather than giving effect to the extant provision of the Electoral Act, 2022 itself.
There is no doubt that the Guidelines and Time Table issued by the 2nd Respondent have the force of law, however, the Guidelines and Time Table being a regulation made pursuant to Section 148 of the Electoral Act, 2022, cannot take precedence over and above that of the extant provisions of Sections 31 and 33 of the Act itself. Thus, the trial Court was in serious error when it based its decision on the Guidelines and Time Table rather than giving effect to the provisions of Sections 31 and 33 of the Electoral Act, 2022.
In the case of JEGEDE VS. INEC (2021) 14 NWLR (PT. 1797) 409 AT 550 – 551, the Supreme Court in the lead judgment, held:
“The pleading that Exhibit P21 and Form EC9B by which the 2nd Respondent submitted the 3rd and 4th Respondent was signed by non-national officers or members with no competence to sign it is contrary to paragraph 17(a) of the first supplementary to Regulations and Guidelines for the conduct of elections of 9-6-2022 is irrelevant as there is no pleading that it is contrary to any provision of the Electoral Act. Failure to obey the directive or instruction of the 1st Respondent in the said Regulations and Guidelines cannot be relied on as ground for an election petition to invalidate the election of the 3rd and 4th Respondents because such failure is not contrary to the provision of the Electoral Act, 2010, as amended. This is so because S. 138(2) of the Act provides that “(2) an act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election but which is not contrary to the provision of this Act shall not of itself be a ground for questioning the election.
Section 153 of the Electoral Act, 2010 clearly made regulations, guidelines or manuals issued by the Independent National Electoral Commission subject to the provision of the Electoral Act. The exact text reads thus:
“the Commission may, subject to the provisions of the Act issue regulations, guideline, or manuals for the purpose of giving effect to the provision of the Act and for its administration thereof.”
Applying these provisions in Nyesom v. Peterside & Ors (2016) 1 NWLR (Pt. 1492) 71 (SC), this Court held that:
“In Section 138. (2) of the Act as above, it is clear that as long as an act (commission) omission in relation to the Guidelines or Regulations is not contrary to the provision of the Act, it shall not of itself be a ground for questioning the election.” Per Kekere-Ekun, JSC
The failure to follow the manual and Guidelines which were made in exercise of the powers conferred by the Electoral Act, cannot in itself render the election void….”
Let me state here that Section 153 of the Electoral Act is in pari material with the provisions of Section 148 of the Electoral Act, 2022 where Exhibits “INEC 1”and “INEC 2” were made pursuant to. It is very clear that non-compliance with a guideline, regulation and/or Time Table made pursuant to the provision of Section 148 of the Electoral Act, 2022 is not a violation of the provision of the Act itself. Moreover, none of the authorities relied upon by the learned trial Judge supports the decision of the Court below that Guidelines supersedes the extant provisions of the principal law.
It is noteworthy that throughout the judgment of the lower Court, there is nowhere it stated that the Appellant was in violation of any of the provisions of the Electoral Act, 2022 but only of the Guideline which in view of the apex Court’s decision, cannot override the main Act itself. I therefore hold that the trial Court was in grave error when it refused to grant the Appellant’s reliefs on the ground that there was “non-compliance with a Guideline while there was no breach of extant provision of the law.”
From the Record and the affidavit evidence of the Appellant who was plaintiff in the lower Court, it is clear to hold that:
i. There was no breach of any of the provisions of the Electoral Act, 2022 particularly Sections 31 and 33 thereof.
ii. The breach of a Guideline or Time Table issued by the 2nd Respondent cannot be a basis for the refusal of the reliefs sought as a Guideline or Time Table cannot override the provisions of the Act.
iii. The learned trial Judge was wrong to have placed more emphasis on Exhibits “INEC 1” and “INEC 2” i.e. the Guideline and Time Table, over and above the extant provisions of Sections 31 and 33 of the Electoral Act, 2022.
Flowing from my findings above, I hold that the learned trial Judge was wrong in holding that a breach of the Guideline and Time Table issued by INEC supersedes the provisions of Sections 31 and 33 of the Electoral Act, 2022.
Issue one is therefore resolved in favour of the Appellant.
ISSUE TWO
It has been held that a decision is said to be perverse when the finding and conclusion reached by a Court cannot be supported having regard to the law and evidence before it or where the Court took into account issues which were never canvassed or properly presented before it.
In the case of UDENGWU VS. UZUEGBU (2003) FWLR (PT. 179) 1173; (2003) 7 SCNJ 145 AT 153, the Supreme Court described what a perverse finding of a Court is as follows:
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence or that it misconceived the thrust of the case presented or took irrelevant matters into account which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardizing the merits of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably in all this, a miscarriage of justice, and the decision must be set aside on appeal.”
See also the Supreme Court decisions in the cases of MINI LODGE LIMITED VS. CHIEF OLUKA OLAKA NGEI (2010) ALL FWLR (PT. 506) 1806 AT 1834; EMEKA VS. STATE (2014) ALL FWLR (PT. 751) 1480; EMMANUEL VS. UMANA (2016) ALL FWLR (PT. 856) 214 AT 271; WUYAH VS. JAMA’A LOCAL GOVERNMENT, KAFANCHAN (2013) ALL FWLR (PT. 695) 1171 AT 1196 and OSUJI VS. EKEOCHA (2009) ALL FWLR (PT. 490) 614.
In view of the position of the law on what is a perverse decision of a Court, it is pertinent at this juncture; to look at the record of the trial Court to see where the Appellant’s complain of the perverse findings has occurred.
At pages 90 – 91 of the Record of Appeal, the trial Court held that:
“… It is pursuant to the powers donated to INEC by Section 148 that the Commission issued to all registered political parties including the 1st Defendant the Time Table and schedule of activities for the 2023 General Elections and the guideline for nomination of candidates for election (attached to the 2nd Defendant’s counter affidavit as exhibits “INEC 1” and “INEC 2” respectively. The approved Time Table and Guidelines having been made by INEC pursuant to the powers vested in INEC by Section 148 of the Electoral Act in part of the Electoral Act and non-compliance with the Time Table and guidelines surely qualifies as non-compliance with the Electoral Act itself simplicita.
It therefore means the last date allowed for withdrawals by a candidate and his replacement to be posted on the INEC website by the 1st Defendant is 12th day of August, 2022 as provided for in Exhibit “INEC 1” and “INEC 2” notwithstanding the provision of Section 31 of the Electoral Act, 2022. Since the 1st Defendant (PDP) did not upload the withdrawal of the former candidate of the party for the election and upload the name of the plaintiff by the deadline of the 12th August, 2022 but rather attempted to do so on the 18th day of August, 2022 it is tantamount to non-compliance notwithstanding that the election is to hold on the 11th of March, 2023.
The above finding is even more complete when account is taken of the fact that the Supreme Court validated it in NDP V. INEC (2013) 6 NWLR (PT. 1350) 392. I hold that INEC Time Table (Exhibit “INEC 1”) is indeed a guideline with a force of law because any action outside the time table 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 time table and guidelines issued by INEC having been made pursuant to Section 148 of the Electoral Act, 2022 are binding on parties…”
Having quoted the above findings of the trial Court, it is pertinent to consider the provision of the Electoral Act, 2022 which the trial Court failed to apply properly and the relevant provision in this regard is Section 31 of the Electoral Act, 2022 which provides that:
A candidate may withdraw his or her candidature by notice in writing signed by him and delivered personally by the candidate to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 90 days to the election.
I have read carefully, the originating process of the Appellant who was the plaintiff at the trial Court which can be found at pages 2 – 51 of the Record of Appeal. I have also, carefully read the decision of the trial Court especially pages 90 – 91 of the Record of Appeal. It is clear that the trial Court failed to interpret the provision of the clear and unambiguous provision of Section 31 of the Electoral Act, 2022 properly. This is so because the said provision of S. 31 of the Act did not make its operation subject to the provision of any Regulation, Time Table or any guideline.
The law on interpretation of statutes is clear that in the interpretation of clear and unambiguous provisions of any statute, the plain and ordinary meaning will be given to it. In the case of UGWU VS. ARARUME (2007) 7 MJSC 1, AT 83 – 84, the Supreme Court held on the interpretation of statute, that:
“A statute, it is always said, is “the will of the legislature” and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it. Thus, the Court declared the intention of the legislature. The Court can elicit that intention from the actual words of the statute. Lord Greene M.R. once observed:
“If there is one rule of constitution for statute and other documents; it is that you must imply any in them which is inconsistent with the words expressly used.” See R. A. Debtor (No. 335) of 1947 (1948) 2 E. R. 5333 at P. 536.
Thus, where the language of the statute is clear and explicit, the Court must give effect to it, for in that case, the words of the statute speak the intention of the legislature. The Court must bear in mind that its function in that respect is JUS DICERE, not JUS DARE and the words of a statute must not be over noted by judges, but reform of the law must be left in the hand of the legislature…”
See also, the cases of UGBA VS. SUSWAM (2013) 4 NWLR (PT. 1345) 427 AT 474; HON. ATT. GEN, LAGOS VS. ATT. GEN OF THE FED. (2014) ALL FWLR (PT. 740) 1296 AT 1331 and IBE VS. NKIRU UGO CHUKWU & 41 ORS (2010) ALL FWLR (PT. 504) 1590 AT 1604.
It was clear that what the trial Court did was to give a meaning to the provision of S. 31 of the Electoral Act different from its clear and unambiguous wordings. For the trial Court to hold that Section 31 of the Act must be read in conjunction with the guideline made by the 2nd Respondent is with respect perverse as the legislature never intended so. If that was the intention of the legislature, it would have clearly stated so in the Section; after all, there is nothing in the said S. 31 of the Act which made its operation subject to any other statute or a guideline or time table. Thus, the perverse interpretation given to the said section by the trial Court influenced the Court in arriving at the wrong decision it made. The trial Court imported extraneous matters in its interpretation of the law before it i.e. the provision of the Electoral Act, 2022 particularly Section 31 thereof.
Thus, the failure of the trial Court to apply the law and evidence before it properly and also to interpret the law i.e. the Electoral Act, 2022 properly, influenced the Court in arriving at the perverse decision it did which occasioned a miscarriage of justice. See the case of OGUNTAYO VS. ADELAJA (2009) ALL FWLR (PT. 495) 1626 AT 1661.
The trial Court also failed in its duty to properly evaluate the evidence before it. In the case of SKYE BANK PLC VS. AKINPELU (2010) ALL FWLR (PT. 526) 460 AT 453, the Supreme Court held on evaluation of evidence, that:
“In the evaluation of evidence, a trial Court has a duty to evaluate all the evidence before it and not just some of them…”
Thus, if the trial Court had evaluated the evidence before it, it would have found out that as at the 18th day of August, 2022 when the 1st Respondent herein wanted to access the website of the 2nd Respondent, and take into consideration the period from the 18th August, 2022 to the 11th of March, 2023 when the general election will take place which is 207 days, and the provision of S. 31 of the Electoral Act, 2022, the trial Court would have arrived at a different conclusion from the one it did. I therefore hold that the lower Court did not evaluate properly the evidence and the law before it, and so this Court will interfere with the evaluation and findings made by the trial Court.
In the case of ADEYEMO VS. ADEYEMO (2011) ALL FWLR (PT. 584) 121 AT 137 – 138, it was held that:
“An appellate Court would only interfere with the evaluation of evidence and findings of a trial Court where such evaluation and findings of fact are not based on a proper and dispassionate appraisal of the evidence given in support of such party’s case or are perverse where on the face of the record justice has not been done in the case…”
See also, the case of GBEDU VS. ITIE (2011) ALL FWLR (PT. 553) 1857 AT 1893 – 1894 on when an appellate Court will interfere with the perverse evaluation of evidence by a trial Court.
I therefore hold the view that this case is one in which this Court can interfere with the perverse findings of the trial Court especially since the interference has nothing to do with the demeanor of witnesses as the case was fought on affidavit evidence and evaluate same and hold that the trial Court failed in its primary duty of evaluating the evidence before it, set aside the erroneous decision of the trial Court and enter a verdict granting the Appellant’s claim. See the case of BARRISTER MAGAJI, HENRY DANJUMA VS. SCC NIG. LTD & 2 ORS (2018) ALL FWLR (PT. 92) 458 AT 103, where this Court per Wambai, JCA held:
“What is left is the relief claimed and to which the Appellant is entitled. It is trite that a successful party is entitled to reliefs claimed, the entitlement of which was proved. This Court is entitled by virtue of Section 16 of the Court of Appeal Act to grant relief to a successful party on appeal which the trial Court was entitled to grant…”
After a careful review of the facts and the law, this Court hereby finds as follows:
1. That a Guideline, Regulation or Time Table made pursuant to the provisions of an Act of parliament, in this case the Electoral Act, 2022 cannot override the extant provisions of the main Law/Act.
2. That the guideline and Time Table issued by the Independent National Electoral Commission (INEC) which was made and issued pursuant to the provisions of Section 148 of the Electoral Act, 2022 cannot under whatever circumstance override the provisions of Sections 31 and 33 of the Electoral Act, 2022.
3. That Exhibits “INEC 1” and “INEC 2” which are Guidelines and Time Table issued by INEC pursuant to the provision of Section 148 of the Electoral Act, 2022 which the trial Court relied upon in arriving at the decision it did is wrong, as the Guidelines and Time Table made pursuant to the provision of the Electoral Act, 2022 cannot override the extant provisions of Sections 31 and 33 of the Act.
4. That the trial Court was wrong in law to have equated/rated and/or interpreted the Guideline and Time Table issued by INEC far above the extant provisions of Sections 31 and 33 of the Electoral Act, 2022.
5. That the finding and holding of the trial Court that the Guidelines and Time Table issued by INEC has been violated where the clear and unambiguous provisions of Sections 31 and 33 of the Electoral Act, 2022 allows for the doing of the act asked for is a perverse finding which cannot be allowed to stand.
6. That from the evidence available before the trial Court, the 18th day of August, 2022 to the 11th day of March, 2023 when the elections into the office of Member of Borno State House of Assembly for Hawul State Constituency is 207 (Two Hundred and Seven) days and therefore the finding of the trial Court that the Guidelines and Time Table issued by INEC has foreclosed the uploading of the substituted candidate of the 1st Respondent herein is also wrong in law and therefore perverse and cannot be allowed to stand.
7. That the failure of the trial Court to correctly interpret Sections 31 and 33 and also Section 148 of the Electoral Act, 2022 and the position of the law on Regulations, Time Table and/or Regulation made pursuant to a law is wrong in law and would be set aside.
8. That the legal authorities relied upon by the trial Court in arriving at its decision are not correct as they are clearly distinguishable from this case as presently constituted.
9. That the trial Court failed in its duty to properly evaluate the evidence before it and also interpret the relevant and applicable laws before arriving at the erroneous decision it made.
10. That the failure of the trial Court to properly evaluate the evidence before it and the law has occasioned a serious miscarriage of justice.
11. That this Court can and will interfere in the non-evaluation of the evidence and can also correctly interpret the provisions of the Electoral Act, 2022 which the trial Court failed to do, and apply same herein.
12. That the evaluation of evidence this Court is called upon to undertake has nothing to do with the demeanor of witnesses as the case at the trial Court was from the record of appeal fought on affidavit evidence.
May I at this juncture refer to the recent unreported decision of this Court in Appeal Number CA/ABJ/CV/953/2022, AWOYEMI OLUWATAYO LUKMAN & ANOR VS. INEC & 2 ORS delivered on the 2nd of October, 2022 wherein the Court held as follows:
“The time within which a political party shall submit the list of candidates participating in an election has been statutorily provided for under Section 29(1) of the Electoral Act, 2022 which provides: – “29. (1) Every political party shall, not later than 180 days before the date appointed for a general election 46 under this Act, submit to the Commission, in the 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.” The directives or Guidelines of the 1st Respondent on submissions of names of candidates being sponsored in an election by political parties including the Governorship election in Osun State cannot override the provisions of the Electoral Act and the 1999 Constitution. The 1st Respondent was right and acted within the Electoral Act when it accepted the nomination of the 3rd Respondent from the 2nd Respondent as same was submitted after valid Primaries of Political Parties. The date set in the Guidelines or Directive of the 1st Respondent cannot render the submission of the 3rd Respondent’s name to the 1st Respondent by 2nd Respondent null and void. See: 1. WIKE EZENWO NYESOM VS HON. (DR) DAKUKU ADOL PETERSIDE & ORS (2016) 7 NWLR (PART 1512) 452 AT 527H – 528A – F per KEKERE-EKUN, JSC who said. “Section 138(1)(b) and (2) and 153 of the Electoral Act provide: 138(1) An election may be questioned on any of the following grounds, that is to say: (b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act. (2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election. 153. The Commission may, subject to the provisions of this Act, issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof.” The above provisions appear to be quite clear and unambiguous. While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138(2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election.”
I have no reason to depart from the reasoning reproduced hereinabove and I do adopt same as mine.
Issue two is therefore resolved in favour of the Appellant.
Flowing from the foregoing, and from the totality of the views expressed, and the conclusions reached in respect of the 2 (two) issues formulated hereinabove; this Court finds merit in the appeal and therefore allows same. An order is hereby made setting aside the decision of the lower Court delivered on the 24th day of October, 2022 and accordingly granting the Appellant’s reliefs as sought in the Originating Summons.
There shall be no orders as to cost.
MAIWADA ABDULLAHI, J.C.A.: I am in full agreement with the reasoning and conclusion articulated in the leading judgment by my learned brother Idris, JCA. I adopt same, by which I too allow this appeal in the manner ordered in the leading judgment.
BATURE ISAH GAFAI, J.C.A.: I was privy to the reasonings profoundly expressed in the lead judgment by my learned Idris, JCA. I adopt those reasonings and the conclusion thereby reached. In consequence, I join my learned brother in allowing this appeal, setting aside the judgment of the lower Court and, proceeding under the provisions of Section 15 of the Court of Appeal Act, grant the Reliefs sought by the Appellant before the lower Court.
Appearances:
U. A. Dibal, Esq. For Appellant(s)
A. T. Ibrahim, Esq. – for 1st Respondent. For Respondent(s)
