HON. CHUDI JONES ONYERERI v. HON. (MRS.) JULIET OBASI AKANO & ORS
(2013)LCN/6643(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of December, 2013
CA/OW/253/2011
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA M. EKPE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
HON. CHUDI JONES ONYERERI Appellant(s)
AND
1. HON. (MRS.) JULIET OBASI AKANO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. PEOPLES DEMOCRATIC PARTY Respondent(s)
RATIO
WHETHER OR NOT THE SUPREME COURT HAS JURISDICTION TO RE-ENTER AN APPEAL DISMISSED THE PROVISIONS OF ORDER 6 RULE 3(2) OF ITS 198 RULES (AS AMENDED)
In Chime v. Ude (1996) 7 NWLR (PT 461) 379 the apex court held:
“It is settled that the Supreme Court has no jurisdiction to re-enter an appeal dismissed under the provisions of Order 6 Rule 3(2) of its 1985 Rules (as amended) for want of prosecution. Under such circumstances, the dismissal is final.”
In the same vein, it was held in Ichado vs. Apeh (1992) 8 NWLR (PT 260) 506 at 511 Paragraphs B-C that the jurisdiction of the Court of Appeal to order that an appeal struck out be re-listed is conferred by statutes and Rules. PER AJI, J.C.A.
WHETHER OR NOT AVERMENTS IN AN AFFIDAVIT NOT CHALLENGED ARE DEEMED ADMITTED
Furthermore, it is trite law that where averments in an affidavit are not challenged, they are deemed admitted. See the case of N.P.A. v. A.I. Co (2010) 3 NWLR (PT. 1182) 487 at 500 paragraph G-H and Section 123 of the Evidence Act, 2011 (as amended). PER AJI, J.C.A.
UWANI MUSA ABBA AJI (PJ) : (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Owerri, presided over by Hon. Justice F. A. Olubanjo delivered on 20/6/2011 in Suit No. FHC/OW/CS/119/2011, between HON. (MRS.) JULIET OBASI AKANO VS. (1) PEOPLES DEMOCRATIC PARTY, (2) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC), (3) CHUDI JONES ONYERERI.
The 1st Respondent herein was the Plaintiff before the lower court. She instituted an action against the Appellant and two others seeking these reliefs:
(a) A declaration that the purported primaries held by the 1st Defendant on the 8th day of January, 2011 to determine its candidate for the Nwangele/Isu/Njaba/Nkwerre Federal constituency is contrary to section 87 of the Electoral Act, 2010 and the Election Guidelines for the Primary Election 2010 of the Peoples Democratic Party and thus illegal, void and of no effect whatsoever.
(b) An Order of Court setting aside the purported primaries and nomination of the 3rd Defendant as the candidate of the 1st Defendant for election into the seat of member representing Nwangele/Isu/Njaba/Nkwerre Federal Constituency in the National Assembly.
(c) An injunction perpetually restraining the 2nd Defendant from including the 3rd Defendant as the candidate of the 1st Defendant for the election into the seat of member representing Nwangele/Isu/Njaba/Nkwerre Federal constituency in the National Assembly in the 2011 General Elections.
(d) An Order of court directing the 1st Defendant to hold the Special Congress as prescribed by the Electoral Act and the Election Guidelines for the Primary Election 2010 of the Peoples Democratic Party for the purposes of determining the candidate to contest election on its platform for the seat of members representing Nwangele/Isu/Njaba/Nkwerre Federal Constituency in the National Assembly in the 2011 General Elections.
(e) And any general or other reliefs, which may be given as a judge may think just as if it had been asked for.
The grouse of the 1st Respondent is that she and other aspirants were screened and declared qualified to contest the primary election slated by the 3rd Respondent herein (who was the 1st Defendant at the lower court) to hold on 5/01/2011 for the purpose of electing the 3rd Respondent’s candidate for the Nwangele/Isu/Njaba/Nkwerre Federal Constituency in Imo State in the General Election into the Federal House of Representatives originally fixed for 2/4/2011 but held on 9/4/2011. The 1st Respondent, other aspirants and delegates on the said 5/01/2011 waited at the Headquarters of the said Federal Constituency i.e. the Headquarters of Nkwerre L.G.A, for the conduct of the said primaries by the officials of the 3rd Respondent but none showed up. In the evening, the peddled rumours had it that the primaries had been shifted to 6/01/2011. On the said 6/1/2011, the officials of the 3rd Respondent did not come again. Consequently, on the 7/01/2011, the 1st Respondent proceeded to the state office of the 3rd Respondent whereat the state chairman of the 3rd Respondent informed her that the Federal Constituency primaries for the constituency was fixed for 9/01/2011 after the senatorial primaries fixed for 8/01/2011. However, on the 8/01/2011, the 1st Respondent received a call from one of her supporters, that the Federal Constituency primaries was holding at the Grasshoppers International Stadium, Owerri, outside the said Federal Constituency. That the 3rd Respondent did not publish the 8/01/2011 as the date for the said primaries neither, the venue nor the time. When the 1st Respondent rushed to the venue she was denied entry by men in uniform who told her that the primaries was conducted and concluded, consequent upon which the 3rd Respondent announced the Appellant as the winner of the purported primaries. The 1st Respondent appealed to the Appeal panel set up, but no response till date.
The Appellant however has it that the Appellant, the 1st Respondent and other aspirants on the 8/01/2011 contested the primary election of the 3rd Respondent to elect the 3rd Respondent’s candidate for the Nwangele/Isu/Njaba/Nkwerre Federal Constituency in Imo State in the General Election into the Federal House of Representatives fixed originally for 2/4/2011 but held on 9/04/2011. That at the end of the primary Election held on 8/01/2011, the Appellant polled 437 votes being the winner with the highest number of votes cast while the 1st Respondent had 79 votes being the fourth. That the 1st Respondent did not challenge the outcome of the primaries election pursuant to Section 87(9) of the Electoral Act, 2011 (as amended) but procrastinated for almost a month after the Appellant’s name had been submitted to the 2nd Respondent by the 3rd Respondent on 31/01/2011, before filing Suit No. FHC/OW/CS/119/2011. The Appellant upon being served with the suit filed a Notice of preliminary objection challenging the jurisdiction of the lower court to entertain the suit, on the grounds that the political party having submitted the name of the Appellant as its candidate, the lower court is robbed of jurisdiction to determine choice of candidate for the political party. The lower court did not uphold the preliminary objection, hence this appeal.
The Appellant’s appeal vide a Notice of Appeal dated 20/6/2011 and filed on 14/7/2011 raised a single ground of appeal. However, on 30/9/2013, this honourable court granted the Appellant extension of time to file and argue 2 additional grounds of appeal contained in Exhibit A titled “Proposed Additional Grounds of Appeal” in a motion dated and filed 21/11/2011. I hereunder reproduce the grounds of appeal without their particulars:
GROUNDS OF APPEAL:
1. The learned trial judge erred in law and thereby occasioned a miscarriage of justice by failing to interpret the combined effect of Section 31(1), Section 33 and Section 35 of the Electoral Act, 2010 (as amended) on the jurisdiction of the court to entertain a suit brought pursuant to Section 87(9) of the Electoral Act, 2010 (as amended) complaining about party primaries in view of the fact that the said suit was brought after the name of the Appellant has been submitted to the Independent National Electoral Commission by the Peoples Democratic Party as its candidate for the Nwangele/Isu/ Njaba/Nkwerre Federal constituency in Imo State in the Federal House of Representative Election.
2. The learned trial judge erred in law when she held that; “Even though the Act provides in Section 33 thereof that a Political Party can only change or substitute its candidate in instances of death or withdrawal by the candidate, and in Section 31 (1) that the Independent National Electoral Commission (INEC) shall not reject or disqualify candidates for any reason whatsoever, it cannot be interpreted as ousting the power of the court to direct said party and Independent National Electoral Commission (INEC) to change and substitute or reject and disqualify a candidate upon the court finding out that the name of the candidate previously submitted to Independent National Electoral by the party was done in error, by Fraud or by any other irregular procedure not permitted by the law or constitution or guidelines of the party and thereby occasioned a miscarriage of justice.
3. The learned trial judge erred in law when she held that; “in the circumstances of this case, based on the definition of the (occurrence of the) word “Notwithstanding” by the Apex Court in 1) OBI v. INEC (2007) 45 WRN P. 20 and 2) NDIC vs. OKEM LTD AND ANOR (2004) 50 WRN P. 1 OR (2004) SC (PT. 11) P. 77 OR (2004) 10 NWLR (PT. 880) P. 107 AT 182 TO 183 the “notwithstanding” in Section 87 (9) of the Electoral Act 2010 (as amended) excludes any impending effect of Section 31(1) and 33 thereof if they could be interpreted as having any such impending effect of Section 31 (1) and 33 thereof, if they could be interpreted as having any such impending or impending effect). These other provision of the Act particularly Section 31(1) and 33 are subordinate to Section 87 (9). Section 31 (1) and 33 of the Act cannot and are not capable of under mining the operation and effect of 87(9) thereof” and thereby occasioned a miscarriage of justice.
Pursuant to the Court of Appeal Rules, 2011, parties filed and exchanged briefs of argument. The Appellant’s brief of argument settled by Chief Chukwuma Ekomaru, SAN, dated 7/10/2013 was filed on 8/10/2013. Therein the learned silk distilled three (3) issues for determination to wit: –
ISSUES FOR DETERMINATION:
1. Whether by the combined effect of the provision of Section 31 (1), 33 and 35 of the Electoral Act, 2010 (as amended) this Honourable Court has jurisdiction to entertain a suit brought pursuant to Section 87(9) of the Electoral Act, 2010 (as amended) or on any matter or complaint arising from party primary election in view of the fact that the name of the Appellant had already been submitted by the 3rd Respondent to the 2nd Respondent as a candidate (Grounds 1, 2, 3 of the Appeal).
2. If the answer to issue No. 1 is in the negative, whether this suit filed on 7th February, 2011 against the primary election held on 8th January, 2011 is maintainable against the Appellant whose name was submitted by the 3rd Respondent to the 2nd Respondent as a candidate on 31st January, 2011 or any other date whatsoever (Grounds 1, 2, 3 of the Appeal).
3. Whether all things considered, the learned trial judge was right to assume jurisdiction in this case, (Grounds 2 and 3 of the Appeal).
The 1st Respondent’s brief of argument dated and filed on 9/11/2013 was settled by Declan Obioma Madu, Esq. wherein he nominated a lone issue for determination thus:
Whether the Federal High Court has the requisite jurisdiction to hear and determine the suit having regard to Section 87(9) of the Electoral Act, 2010 (as amended)?
The said brief incorporated therein a Notice of Preliminary objection to the competence of the Appellant’s appeal on the following grounds:
i. The founding Notice and Grounds of Appeal in this appeal filed on the 20th day of June, 2013 is the Notice and Grounds of Appeal that was the basis of Appeal No. CA/OW/192/2011.
ii. Appeal No. CA/OW/192/2011 was on the 5th day of December, 2011 dismissed for want of diligent prosecution.
iii. By reason of (i) and (ii) supra, this appeal predicated on the said Notice and Grounds of Appeal dated and filed on 20th June, 2011 is incompetent.
iv. The appeal constitutes an abuse of the process of court.
v. One ground of appeal is the subject of 3 issues for determination.
The 2nd Respondent (INEC) filed an undated brief of argument but filed on 4/11/2013 settled by John Onuche, Esq. He also raised a lone issue for determination:
Whether the 1st Respondent’s Objection based, as it were, on the above grounds is meritorious and ought to be upheld.
The 3rd Respondent did not file a brief of argument to the main appeal but being also aggrieved with the said Ruling of the lower court arrogating jurisdiction to itself, cross appealed and shall hereinafter be called the Cross Appellant. He initiated the cross appeal vide a Notice of Cross Appeal filed on 14/10/2013, pursuant to order of court granted on the 30th September, 2013, upon three (3) grounds of appeal as hereunder reproduced without their particulars:
GROUNDS OF APPEAL:
1. The learned trial Judge erred in law when he held thus: “Even though the Act provides in Section 33 thereof that a political party can change or substitute its candidate in instance of death or withdrawal by the candidate and in Section 31 (1) that the Independent National Electoral Commission (INEC) shall not reject or disqualify candidates for any reason whatsoever, it cannot be interpreted as ousting the power of the court to direct the said party and Independent National Electoral Commission (INEC) to change and substitute or reject and disqualify a candidate upon the court finding out that the name of the candidate previously submitted to the Independent National Electoral Commission by the party was done in error, by fraud or by any other irregular procedure not permitted by the law or constitution or guidelines of the party.
2. The trial judge erred in law when he held thus: In the circumstance of this case, based on the definition of the (occurrence of the) word, “Notwithstanding” by the Apex court in: OBI v. INEC (2007) 45 WRN P. 20 and 2) NDIC v. OKEM LTD AND ANOR (2004) 50 WRN p. 1 OR (2004) SC (PT. 11) P. 77 or (2004) 10 NWLR (Pt. 880) P. 107 at 192 – 183. The notwithstanding in Section 87 (9) of the Electoral Act 2010 (as amended) excludes any impending or impending effect of Section 31 (1) and 33 thereof (if they could be interpreted as having any such impending or impending effect. These other provisions of the Act particularly Section 31 (1) and 33 are subordinated to Section 87 (9) of the Act and its effect on Section 31 (1) and 33 thereof. Thereby occasioning a miscarriage of justice in failing to interpret Section 87(9) in conjunction with Sections 31(1) and 33 of the Electoral Act, 2010 (as amended) and the effect of Section 31 and 33 on Section 87 (9) of the Act.”
3. The learned Trial Judge erred in law when he refused to uphold the Preliminary Objection that the court is not seised with jurisdiction to entertain the case of Plaintiff/Respondent.
The Cross Appellant’s brief was settled by S. C. Imo, Esq. of Ndukwe Nnawuchi, SAN & Co., wherein he distilled two (2) issues for determination of the cross appeal.
ISSUES FOR DETERMINATION:
1. Whether the lower court can entertain/hear a suit/matter after the name of a candidate has been submitted to the 2nd Respondent by the Cross Appellant after the conduct of its Primaries?
2. Whether the learned trial Judge was right when he failed to interpret Section 87(9) in conjunction with Sections 31(1) and 33 of the Electoral Act, 2010?
The 1st Respondent hereinafter called the Cross Respondent in the cross appeal filed his brief of argument settled by Declan Obioma Madu, Esq, dated and filed on 29/10/2013, wherein he formulated an issue for the determination of the cross appeal:
Whether the Federal High Court has the requisite jurisdiction to hear and determine the suit having regard to Section 87(9) of the Electoral Act, 2010 (as amended).
At the hearing of the appeal on 11/11/2013, L. C. Alinnor (Jnr) Esq., adopted and relied on the Appellant’s brief dated 7/10/2013 and filed 8/10/2013, and the Appellant’s Reply brief dated and filed on 14/10/2013 as his argument canvassed in the appeal and prayed the Court to dismiss the 1st Respondent’s Preliminary Objection and allow the appeal.
Learned Counsel to the 1st Respondent, Declan Obioma Madu, Esq. adopted and relied on the 1st Respondent’s brief of argument, wherein his preliminary objection was incorporated and urged the court to dismiss the appeal.
The learned counsel to the 2nd Respondent, John Onuche, Esq. adopted and relied on his brief but however prayed the court to set aside the ruling of the Federal High Court delivered on 20/06/2011 and strike out the Suit; having joined the band of the Appellant.
The Learned senior counsel Nnawuchi, SAN to the Cross Appellant adopted and relied on his undated brief but filed on 24/10/2013 and urged the court to allow the cross appeal and set aside the ruling of the Federal High Court. While the Cross Respondent’s counsel, Declan Obioma Madu, Esq., adopted his brief dated and filed on 29/10/2013 and asked the Court to dismiss the cross appeal.
I will first consider the 1st Respondent’s preliminary objection to the competence of the main appeal, wherein the fate of the main appeal resides.
The 1st Respondent’s Preliminary Objection are on five (5) grounds afore listed which he argued in his brief. Worthy to note is also his motion for the dismissal of Appeal No. CA/OW/253/2011 dated and filed on 22/5/2012 with an eight paragraph affidavit deposed to by one Umewezie Vivian and Exhibits A, B and C attached. His written submission thereto is dated and filed on 5/12/2012. The Appellant consequentially filed a nine paragraph affidavit in rebuttal deposed to by one Chibueze Obinna dated and filed on 18/7/2012 with a written submission thereto dated and filed on 13/12/2012. I will therefore for the purpose of determining the preliminary objection make reference and rely on the affidavit evidence of the parties.
It is the submission of counsel to the 1st Respondent that Appeal No. CA/OW/253/2011 derives its existence from Appeal No. CA/OW/192/2011 which was dismissed by this court on 5/12/2011 for want of diligent prosecution. He relied on Exhibits A and B which are the enrolled order dated 5/12/2011 dismissing Appeal No. CA/OW/192/2011 and Notice of Appeal No. CA/OW/192/2011 respectively. He submitted that one Notice of Appeal cannot be the foundation of two (2) separate appeals. He further submitted that Appeal No. CA/OW/192/2011 having being dismissed on 5/12/2011, the only remedy available to the Appellant is an appeal to the Supreme Court. He relied on Buhari v. Yabo (2006) 17 NWLR (pt. 1007) 162 at 182 paragraphs A-C and Tsokwa v. U.T.C (Nig.) Ltd. (2000) 7 NWLR (PT 666) 654 at 661 paragraphs C-D. He thus concluded that Appeal No. CA/OW/253/2011 has no substratum by way of a valid appeal and amounts to abuse of court process.
The learned counsel to the Appellant on the other hand contended that Appeal No. CA/OW/192/2011 was struck out for want of diligent prosecution and not for incompetence of Notice of Appeal and that Appeal No. CA/OW/192/2011 and CA/OW/253/2011 are not the same. He further submitted that the dismissal of CA/OW/192/2011 does not affect the Notice of Appeal, the additional grounds of Appeal and the brief of argument founded on CA/OW/255/2011. He submitted that substantial justice and not technicality is the basis for fighting cases. He cited Ngige v. Achukwu (2005) 5 NWLR (PT 909) 123 at 141 paragraphs A-C, Shuaibu v. N.A.B. Ltd (1998) 5 NWLR (PT 551) 582 at 596 paragraphs C-E and Abubakar v. Yar’Adua (2008) 4 NWLR (PT. 1078) 465 at 511 paragraphs A-C. He argued that it will be unconstitutional to dismiss this appeal without hearing it on the merit. He submitted that there is no need to pursue the dismissal of CA/OW/192/2011 to the Supreme Court and concluded that the cases of Buhari v. Yabo (2006) 17 NWLR (Pt. 1007) 162 at 18 and Tsokwa v. UTC Nig. Ltd (2000) 7 NWLR (Pt. 666) 654 at 661 are irrelevant.
I have carefully considered the arguments of the parties and the evidence on the printed record. Now the question is, can Appeal No. CA/OW/253/2011 have foundation and substratum of its own? Exhibit “B” is the “NOTICE OF APPEAL” in appeal No CA/OW/192/2011 which contained only one Ground of Appeal with a Preliminary prayer that “further grounds of appeal will be filed”, Nonetheless, Exhibit ‘A’ of the Appellant’s motion that sought for extension of time to file and argue additional grounds of appeal dated and filed on 21/11/2011, which bears Appeal No. CA/OW/253/2011 is titled “PROPOSED ADDITIONAL GROUNDS OF APPEAL.” The next paragraph therein is boldly and in capital letter titled “GROUND TWO” then the final “GROUND THREE.” The simple and common sense, logic, here is that Appeal No. CA/OW/253/2011 completely rests and has its foundation on Appeal No. CA/OW/192/2011 and same applies mutatis mutandis with the Grounds of Appeal therein. The Appeal No. CA/OW/192/2011 is the unblical cord of Appeal No. CA/OW/253/2011. Accordingly, Appeal No. CA/OW/253/2011 cannot stand or have life of its own.
Assuming without conceding that Appeal No. CA/OW/192/2011 and Appeal No. CA/OW/253/2011 are two different appeals or notices of appeal, what the Appellant ought to have done was to withdraw one. See S.B.N. Plc vs. C.B.N (2009) 6 NWLR (PT 1137) 237 at 267 paragraph E.
This is however not the case here. Besides, where an Appellant intends to argue or add additional Grounds of Appeal as deposed in the counter affidavit, he has to come by way of “amendment.” See Order 6 Rule 15 of the Court of Appeal Rules, 2011.
Appeal No. CA/OW/192/2011 being the foundation of this appeal and having been dismissed on 5/12/2011 as per Exhibit “A”, the dismissal is final and every other thing founded on it must go also. In Chime v. Ude (1996) 7 NWLR (PT 461) 379 the apex court held:
“It is settled that the Supreme Court has no jurisdiction to re-enter an appeal dismissed under the provisions of Order 6 Rule 3(2) of its 1985 Rules (as amended) for want of prosecution. Under such circumstances, the dismissal is final.”
In the same vein, it was held in Ichado vs. Apeh (1992) 8 NWLR (PT 260) 506 at 511 Paragraphs B-C that the jurisdiction of the Court of Appeal to order that an appeal struck out be re-listed is conferred by statutes and Rules. Therefore, in the absence of any application before us praying the court to relist an appeal that has been dismissed for non-appearance of the Appellant, the Court of Appeal cannot alter its decision dismissing an appeal for want of prosecution by granting an application to relist same. The cases of Buhari vs. Yabo and Tsokwa vs. UTC (Nig.) Ltd Supra by learned counsel to the 1st Respondent is germane and apposite and rightly represents the true position of the law.
As argued by the learned Appellant’s counsel, can CA/OW/253/2011 cure the defect in CA/OW/192/2011? The court answered this in Nduba vs. Appio (1993) 5 NWLR (PT. 292) 201 at 219:
“Strictly, the main issue in this ruling is not so much based on the additional grounds of appeal, but the original notice and ground of Appeal because if the grounds are bad abinitio, there is nothing that can be built on them. In other words, they cannot be able to serve as pillar or foundation on which additional grounds can be based.”
It is also the argument of learned counsel to the 1st Respondent that the Appellant proposed more than one issue for determination from a ground of appeal. He referred the Court to page 10 of the Appellant’s brief of argument wherein issues number 1 and 2 were derived from grounds 1, 2 and 3, issue 3 derived from grounds 2 and 3. He submitted that it is the law and practice that no more than one issue can be distilled from a single ground of appeal. He relied on Abediyi vs. Umar (2012) 9 NWLR (Pt 1305) 279 at 292 paragraph H.
I have not seen anywhere in the counter affidavit and the Appellant’s reply brief where this grounds of preliminary objection was challenged. No issues therefore have been joined. Furthermore, it is trite law that where averments in an affidavit are not challenged, they are deemed admitted. See the case of N.P.A. v. A.I. Co (2010) 3 NWLR (PT. 1182) 487 at 500 paragraph G-H and Section 123 of the Evidence Act, 2011 (as amended).
The 2nd Respondent having pitched tent with the Appellant, his brief is incompetent and is hereby discountenanced, see Buhari vs. Obasanjo (No. 2) 2003 11 SCNJ 40 at 56-57.
Unfortunately, on the competence of this appeal, cannot be redeemed by virtue of substantial justice. I must say that I completely agree with the concise and commendable arguments of the learned counsel to the 1st Respondent. Accordingly, I accede to his prayers. The preliminary objection succeeds and this appeal is hereby dismissed. I award the costs of N50, 000.00 against the Appellant in favour of 1st Respondent only.
I will now proceed to consider the cross appeal, and for the purpose of its determination, I adopt the lone issue formulated by the cross Respondent thus:
Whether the Federal High Court has the requisite jurisdiction to hear and determine the Suit having regard to Section 87(9) of the Electoral Act, 2010 (as amended)?
It is the contention of S.C, Imo, Esq., learned counsel to the Cross Appellant that pursuant to Section 31(1) and 33 of the Electoral Act, 2010 (as amended), that once a political party (the Cross Appellant in this case) has submitted the name of the Appellant to the 2nd Respondent (i.e. INEC), the 2nd Respondent is bound to accept the candidate and the cross appellant shall not for any reason change or substitute the name of any candidate it has submitted and that any suit brought thereafter cannot be entertained by the court. He relied on Mohammed vs. Resident Electoral Commissioner, Kaduna State (2009) ALL FWLR (Pt. 468) 355, Ugwu v. Ararume (2009) ALL FWLR (Pt. 377) 807 and Onuoha v. Okafor (1983) 2 SCNLR 244. He submitted that the remedy of access to court as provided by Section 87(9) of the Electoral Act, 2010 (as amended) is only when an aspirant’s name has not been submitted to the 2nd Respondent. He further submitted that time is of essence and a necessity in election matters.
He concluded that the remedy available to the cross Respondent in this appeal lies only in damages. He relied on Dalhatu vs. Turaki (2003) 15 NWLR (PT. 843) 310 SC at P. 347. Paragraphs F-G. Alternatively, that the Cross Respondent may sue by virtue of Section 31(5) of the Act.
The Cross Respondent’s counsel, Declan Obioma Madu, Esq., on the other hand heavily relied on the ruling of the trial judge that by virtue of Section 87(9) of the Electoral Act, 2010 (as amended), the trial Court has jurisdiction to hear and determine the suit. He submitted that the cases cited by the Cross Appellant are not applicable. He relied also on the case of Babatunde vs. P.A.A & T.A. Ltd (2007) ALL FWLR (PT. 372) 1721 at 1759.
The crux of this cross appeal hinges on the interpretation of Section 87(9) of the Electoral Act, 2010 (as amended). It is hereunder reproduced for ease of reference:
Section 87(9):
“Notwithstanding the provisions of the Act or Rules of a political party an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or FCT for redress.”
The wordings, con, interpretation and meaning of Section 87(9) of the Act admit no vagueness or ambiguity and the intention of the lawmakers is literal, plain, ordinary and above all to mete justice.
The Electoral and political regime has undergone the most frequent and radical changes with amendments and re-enactments of Electoral Acts and laws to meet the justice fairness, transparency and security of elections in Nigeria. Rights, duties and obligations are conferred by statutes and where none exists, the courts are also helpless. However, the progressive developments in our electoral laws and system have put smiles on some faces and at least sanitized the system wherein some sworn in politicians have been unseated. It is therefore in the light of the foregoing that the Electoral Act, 2006 gave way to the Electoral Act, 2010 (as amended). It must be noted that Section 87 of the Electoral Act, 2010 (as amended) is of a class of its own and fundamentally different from that of the Electoral Act, 2006. Most fundamental is the proviso in subsection (9) of the Section 87 of the Act. It is an island and overlord over Sections 1 to 87 (8) and (11) to (12) and Sections 88 to 158 of the Act and all the guidelines of all the political parties in Nigeria; except its own self. All other Sections and subsections of the Act are subordinate to it. Thus, it supersedes, superintends and bulldozes other sections of the Act.
Accordingly, the toga and regalia of its power is the word “Notwithstanding” used at the beginning of the subsection which the apex court interpreted in N.D.I.C vs. Okem Ent. Ltd (2004) 10 NWLR (PT 880) 107 at 182 to mean “to exclude an impinging or impeding effect of any other provisions of the statute or other subordinate legislation so that the said section may fulfill itself.” I am therefore of the opinion that the communal or conjunctive reading and interpretation of Sections 31(1), 33 and 35 as advocated by the Cross Appellant cannot be the intention of the lawmakers. Besides, the cases cited and relied upon by the Cross Appellant are inapplicable because they were decided in the light of the Electoral Act, 2006. The submission of the Cross Appellant that time is of essence and a necessity in election matters is not in respect of the right and access to justice and where the issue and necessity of time is repugnant to fair hearing, justice must be seen to be done.
In fact, an illegality cannot be sustained under any guise whatsoever.
He who expects justice and equity must do equity and justice. Time was not mentioned nor can it be inferred in Section 87(9) of the Act to be a bar or ouster to the access and right of a complainant whose selection or nomination right has been breached or tampered with.
Though, an appeal is meant to review or reverse a decision of a lower court, it is my candid opinion that the findings of the lower court contained on pages 114 to 116 of Record delivered on 20/6/2011 is unassailable. On the whole, this cross appeal is unmeritorious and is hereby dismissed. I award costs of N50, 000.00 against the Cross Appellant in favour of the Cross Respondent.
PHILOMENA MBUA EKPE, J.C.A.: I have just read in draft the lead judgment delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) JCA. My Lord has indeed dealt comprehensively and painstakingly with all the salient issues raised in this appeal I am in total agreement with his reasoning and conclusions in the appeal which I too consider unmeritorious and dismiss it accordingly. I award costs of N50, 000.00 against the Appellant in favour of the Respondent. It is also my most humble view that the cross appeal too is unmeritorious and I do dismiss it accordingly. I abide by my Lord’s order as to costs of N50.000 against the cross Appellant in favour of the Appellant and also N50, 000 in favour of the 1st Respondent.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances
L. C. Alinnor (Jnr.) Esq. with D. U. Alinnor, Esq.For Appellant
AND
A. K. Madu, Esq. with N. U. Iwuoha (Mrs.) and N. I. Amam (Mrs.) for the 1st Respondent.
John Onuche, Esq. for the 2nd Respondent.
N. A. Nnawuchi, SAN, with him N. A. Anike, Esq. for the 3rd Respondent/Cross Appellant.For Respondent
