DELTA STATE HOUSE OF ASSEMBLY & ANOR v. DEMOCRATIC PEOPLES PARTY & ORS
(2014)LCN/7700(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of April, 2014
CA/B/181/2013
RATIO
CONSTITUTIONAL LAW: A PROVISO; THE PURPOSE OF A PROVISO, THE DEFINITION OF ‘DIVISION’, ‘FACTION’ WITHIN THE CON OF THE CONSTITUTION
The most important portion of the Constitution under consideration is the proviso to the said S.109(1)(g). A proviso is meant to curtail and or qualify the provisions of S.109(1)(g) of the Constitution. A proviso creates an exception or relaxes a limitation imposed by any legislation. See NDIC v. Okem Ent. Ltd. (2004) All FWLR (Pt. 210) Pg. 1176 at 1235; Adebusuyi v. INEC (2010) All FWLR (Pt. 545) Pg. 202 at 226-227. The exceptions envisaged by S.109(1)(g) are that there must have been division in the political party, a merger of two or more political parties or factions by one of which the defector was previously sponsored. It brings us to the definition of or what constitutes “division”. I have to make the point that the words “factionalism” or “leadership tussle” are extraneous to the provisions of S.109(1)(g) of the Constitution. In fact the words have different meanings “Faction” is defined by Black’s Law Dictionary – 9th Edition as follows:
“A number of citizens, whether a majority or a minority, who are united and motivated by a common interest that is adverse to the aggregate interests of the community.”
The Collins English Dictionary defines faction as:
“a group of people forming a minority within a larger body especially a dissentions group” or “strife or dissention within a group”.
“Division” is defined in the 8th Edition of the Oxford Advanced Learners Dictionary as:
“The process or result of dividing into separate parts.”
It is my humble view that factions within the con of the Constitution means that there are groups within a larger group who are also still under the umbrella of the same organization. The division envisaged by S.109(1)(g) is when an organization has been dissolved into two parts each claiming independence from each other. Each division may call itself different names with different leaders. A division contemplates the breakdown of an erstwhile cohesive whole into two or more separate parts. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE; HOW TO TENDER A DOCUMENT TO SUPPORT THE EVIDENCE ON OATH AND THE ONLY SECONDARY EVIDENCE THAT IS ADMISSIBLE
The documents to be relied on to support the evidence on oath can only be tendered in a proceedings by way of originating summons by attaching them to the affidavit. They can also be tendered by agreement from the Bar if they are Certified True Copies. The documents have thus been tendered by attaching them and referring to them in the appropriate paragraphs of the affidavit in support of the originating summons. They are the evidence before the court. To say that the documents were not tendered is clearly wrong. See Ajiboye v. Duro (2010) All FWLR (Pt. 507) Pg. 136 at 177; Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) Pg. 713 at 722 and Fawehinmi v. IGP (2000) FWLR (Pt. 12). There is no doubt that the only secondary evidence admissible is certified copy of a document. The documents are hereby declared inadmissible.
In Fawehinmi v. IGP supra, this court per Oguntade held unequivocally as follows:
“It seems to me that where the exhibit concerned is the primary evidence by which it is sought to prove the truth of a particular deposition in an affidavit, the documentary exhibit must satisfy the requirements of S.97 of the Evidence Act. Otherwise it should be ignored or discountenanced…. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF THE COURT TO INTERPRET AND EXPOUND THE LAW AND NOT TO EXPAND IT
The law is well settled that, in its interpretative jurisdiction, the court – the judex, is to interprete and expound the law and not to expand it. That is, it is to determine and pronounce on what the law is, and not what the law ought to be. Chief Felix Amadi & anor. v. INEC and Ors. (2013) 4 NWLR (Pt. 1345) 595 at 633 (SC); (2012) 2 SCNJ (Pt. 1) 163 at 193 – 194; Ladoja v. INEC & Ors. (2007) 12 NWLR (Pt.1041) 115 (SC).
Therefore, words used in a constitutional provision or any other statute, are to be given their ordinary and grammatical meaning. That is, where the words so used are clear and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction. Thus, the court cannot import into the provisions, that which was not intended by the framers of the constitutional provisions which will certainly be tantamount to defeating the purpose and intendment of the Legislation. Amadi v. INEC (supra); Nigerian Army v. Brig. General Maude Aminu Kano (2010) 1 SCNJ 250; Amalgamated Trustees Ltd. v. Association of Discount Houses Ltd (2007) 15 NWLR (Pt. 1056) 118 at 156 (SC); Egoluru v. Obasanjo (1999) 5 SCNJ 92; Chief Awolowo v. Alhaji Shehu Shagari (1979) 6-9 SC 51. Per. TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. DELTA STATE HOUSE OF ASSEMBLY
2. THE SPEAKER, DELTA STATE HOUSE OF ASSEMBLY Appellant(s)
AND
1. DEMOCRATIC PEOPLES PARTY
2. MR. CHUKWUMA DAFIKPAKU
3. DR. ALPHONSUS CHUKWUTEM OJO
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, delivered by Hon. Justice Olatoregun-Ishola J. on 1/3/2013. The facts which led to this appeal are as follows:
By an originating summons dated and filed on 1st November, 2012, the 1st and 2nd respondents (as plaintiffs at the lower court) commenced an action seeking a determination of the following questions:
1. Whether under S.109(1), (e) and (2) of the Constitution of the Federal Republic of Nigeria 1999, as amended, the 2nd defendant is under an obligation to declare the seat for Ukwuani Constituency of the 1st defendant vacant in the light of the 3rd defendant defecting from the 1st claimant to the Peoples Democratic Party.
2. Whether the 3rd defendant, by defecting to the Peoples Democratic Party from Democratic Peoples Party, has not lost his seat in the Delta State House of Assembly, in the light of S.109 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.
Upon these two questions the Respondents sought from the court four (4) reliefs as follows:
1. A declaration that the seat for Ukwani Constituency of the Delta State House of Assembly has become vacant in the light of the 3rd defendant defecting from the 1st claimant to the Peoples Democratic Party on the floor of the 2nd defendant on Thursday the 20th day of September, 2012.
2. An order compelling the Speaker, Delta State House of Assembly to declare the seat for Ukwani Constituency of the Delta State House of Assembly vacant.
3. An order of perpetual injunction restraining the 3rd defendant from further parading himself as a member of the Delta State House of Assembly Elections on the basis of the House of Assembly Elections held in April, 2011.
4. An order directing the 4th defendant to immediately commence the process of conducting a fresh election for Ukwani Constituency of the Delta State House of Assembly.
Parties filed supporting affidavit and counter-affidavit. Written addresses were also filed and after hearing argument from counsel, the trial court granted all the reliefs sought by the originating summons. Dissatisfied with that decision, the 1st and 2nd defendants appealed to this Court. On 10/2/2014 when this appeal was heard, a sister appeal No. CA/B/166/2013 – INEC v. DPP & Ors was also heard by this court. One of the issues for determination in that appeal is whether the whole judgment is not a nullity by virtue of the lack of fair hearing due to non-service of the Appellant at the lower court. This court resolved that the whole judgment is a nullity and set the said judgment aside.
However since this is the penultimate court, and in the event that we are found to be wrong in respect of the conclusions in respect of CA/B/166/2013, being obliged to consider the issues for determination in this appeal, I will proceed to do so.
The appellants filed a notice of appeal on 21/3/13. The appellant’s brief dated 28/5/2013 was filed on 30/5/2013. The 1st Respondent’s brief dated 4/2/13 was filed on 5/9/13. The 2nd respondent filed his brief of argument on 30/7/13. The 3rd respondent filed brief on 1/7/13, while the 4th respondent’s brief dated 28/6/13 was filed on 1/7/13.
At the hearing of the appeal, learned counsel for the appellant, Mr. Erhahon urged the court to discountenance the 2nd respondent’s brief as he is merely the chairman of a local chapter who has been replaced by the National representative of the party. Mr. Sarwuan for the 1st respondent conceded the appeal. Mr. Ndugbu for the 2nd respondent insisted that he wanted to withdraw the preliminary objection to the appeal and urged the court to strike out the preliminary objection but to dismiss the appeal.
On the other hand, the 3rd and 4th respondents conceded the appeal through M. A. Abubakar and Ahmed Raji SAN respectively of counsel. In the circumstances, only the 2nd Respondent is opposing the judgment of the trial court as the other respondents conceded the appeal. Therefore, I will consider only the briefs filed by the appellant and the 2nd respondent in the determination of this appeal.
The appellant identified 2 issues for determination which were adopted by the Respondent’s counsel. I also adopt them as mine. They are set out below:
(1) Having regard to the totality of this case, the state of affidavit evidence juxtaposed with the proviso to S.109(1) 9(g) of the 1999 Constitution (as amended), whether the judgment of the lower court is not perverse and wrong in law.
(2) Whether the lower court was not in grave error to have held that the public documents relied upon by the plaintiffs did not require certification.
ISSUE NO. 1
Having regard to the totality of this case, the state of affidavit evidence juxtaposed with the proviso to S.109(1)(g) of the 1999 Constitution (as amended), whether the judgment of the lower court is not perverse and wrong in law.
Learned senior counsel Mr. Augustine Alege SAN in the brief settled by himself, N. I. Ekunwe (Mrs.) A. A. Malik Esq. and U. U. Njoku Esq. for the Appellants submitted that the issues in controversy really is the interpretation of S.109(1) of the 1999 Constitution as amended. Senior counsel submitted that the proviso of S.109(1) must be given its literal and grammatical meaning as that has been the attitude of the courts that where the statute is clear, it must be given its grammatical meaning. Senior counsel cited Olawoyin v. Commissioner of Police (1961) All NLR 203; Edozien v. Edozien (1988) 13 NWLR Pt. 580 Pg. 133; Ojukwu v. Obasanjo (2003) FWLR (Pt. 182) Pg. 1766.
Counsel argued that the proviso to S.109(1) is a saving qualification which makes it possible for a member of a House of Assembly to defect and yet retain his seat in the House. Senior counsel insisted that the avowed reason for the 1st appellant’s resignation from the 1st Respondent was due to both the facts of the dwindling fortunes of the party and the current crisis which engulfed the party.
Senior counsel argued that the learned trial judge found that the DPP had leadership crisis but still held that there was insufficient evidence that the crisis had resulted in the division of the 1st respondent. Senior counsel submitted that the conclusion of the trial judge was perverse because of the two contradictory findings made. Counsel submitted that the entire judgment ought to be set aside by the appellate court as the appellate court cannot pick and choose which of the findings to apply. He cited Ajileye v. Fakayode (1998) 4 NWLR (Pt. 545) Pg. 184; Hani Akar Ent. Ltd. v. I.N.M.B. Ltd (2011) 1 NWLR (Pt. 1228) Pg. 302; Keyamo v. Folorunso (2011) 9 NWLR (Pt. 1252) Pg. 209 at 241.
Senior counsel argued that the proviso in S.109(1) is an exception where it appears and that the proviso is applicable to the circumstances of this case.
Senior counsel insisted that the fact of the division inside the party and the leadership crisis therein were never contradicted and should have been accepted by the learned trial judge. Senior counsel cited Attorney General, Ondo v. Attorney General, Ekiti (2001) 17 NWLR (Pt. 743) Pg.706.
Senior Counsel argued that the learned trial court employed extraneous material to arrive at its conclusions. Counsel cited Keyamo v. Folorunso (2011) 9 NWLR (Pt. 1252) Pg. 209 at 241.
Senior Counsel insisted that the affidavit evidence abundant on record was to the effect that there was a crisis in the party which led to a division in the party. Learned senior counsel argued that the entire House accepted the 3rd Respondent’s request as coming under the proviso to S.109(1)(g). It is important to note that 1st Respondent has other members who were present when 3rd respondent’s request was considered and accepted by the entire House. These DPP members in the House of Assembly would have objected on the floor of the House if there was no faction in the 1st Respondent.
Learned senior counsel who quarreled with the opinion of the learned trial judge to the effect that the case came to court because the Speaker – 2nd appellant failed to act upon the violation of the provisions of S.109(1) of the Constitution. Senior counsel submitted that the clear constitutional duty on the Speaker is to present the evidence to the House and to act after the House (not the Speaker) is satisfied that any of the provisions of the subsection have become applicable in respect of a member.
Learned 2nd Respondent’s counsel is of the contrary view that the appellant never presented any evidence of fractionalization of 1st Respondent before the trial court. In the 2nd Respondent’s brief settled by R. O. Ndugbu, counsel insisted that the court should consider the trite principle that the party that asserts must prove the assertion. He cited Remilekun Olaiya v. Mrs. Cornella T. Olaiya (2002) FWLR (Pt. 109) Pg. 1588. Counsel submitted that the assertion of the appellants and the 3rd respondent in respect of factionlization or division were mere ipsi dixit that needed to be supported by evidence.
Counsel submitted that mere assertion or existence of a division or faction in the 1st Respondent was not enough. The Appellants and the 3rd Respondent never produced concrete evidence of the division which the 1st and 2nd Respondents denied in paragraphs 10 and 11 of the affidavit in support of the originating summons. Counsel further submitted that the 3rd Respondent neither proved division within 1st Respondent nor merger with another political party. All that he proved was intra party squabbles, which would naturally exist in any human organization.
Counsel cited FEDECO v. Goni & Anor (1983) NSCC 481. Learned 2nd Respondent’s counsel further submitted that the complaint of the Appellants’ counsel that the learned trial judge refused to give full meaning and effect to the word “factionalism” is completely unfounded since the legislation to be interpreted – S.109(1)(g) of the 1999 Constitution does not contain that word. Counsel insisted that the learned trial judge was right in not following the appellants into the adventure of reading extraneous words into the clear provisions of the law.
On the role of the Speaker of the State House of Assembly under S.109(2) of the Constitution, counsel argued that this question was not raised or argued by the parties at the trial court. Counsel urged this court to observe that from the records the appellants did not raise this issue at the lower court. In this appeal the Appellants have not sought for and have not been granted any leave to raise and argue this issue.
The 2nd Respondent’s counsel however argued that in spite of the fact that Exhibit RON5 shows that the 1st Respondent had written to the 2nd Appellant to carry out his constitutional duty, the 2nd Appellant in paragraph 3(j) of his counter affidavit before the lower court, admitted receiving the letter but insists that Exhibit RON5 is not supported by the Constitution. Counsel insisted that the issue was not presented to the State House of Assembly and the House never determined the issue as erroneously argued by the Appellant’s counsel. It was the failure of the 2nd Appellant to act on Exhibit RON5 and present it to the 1st Appellant that resulted in the claim for declaratory reliefs. The 2nd Appellant had held the erroneous position now rightly corrected by the trial court that the Constitution does not compel him to do so.
RESOLUTION OF ISSUE ONE
The crux of this appeal is the condition under which a person elected into a State House of Assembly loses or vacates his seat. The provision of S.109(1)(g) of the 1999 Constitution is set out below:
“109(1) A member of a House of Assembly of a State shall vacate his seat in the House if –
(a) …….;
(b) …….;
(c) ……..;
(d) ……..;
(e) ……..;
(f) ……….;
(g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected.
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or a merger of two or more political parties or factions by one of which he was previously sponsored or
109(2) The speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member.
The case of the 1st and 2nd Respondents as Plaintiffs at the trial court is that the 3rd Respondent who was sponsored by the 1st Respondent contested and won elections into the Delta State House of Assembly as member representing Ukwani Constituency of the State. However, the said 3rd Respondent, defected to the Peoples Democratic Party and 1st and 2nd Respondents’ contended that he had therefore lost his membership of the House by virtue of S. 109(1)(g) of 1999 Constitution.
In support of the reliefs sought in the originating summons, the 2nd Respondent (then plaintiff) deposed to an affidavit on 1st November, 2012. The basis of their case is well captured in paragraphs 5, 7, 8, 9, 10, 11 and 12 of the said affidavit where he deposed thus:
“5. The 3rd defendant was a member of the 1st plaintiff till his defection to the Peoples Democratic Party on the floor of the 1st defendant on the 20th day of September, 2012.
7. The 3rd defendant was a candidate nominated by the 1st plaintiff to contest for the position of member, representing Ukwani Constituency in the Delta State House of Assembly in the April, 2011 National and States Legislative Houses Election.
8. Pursuant to the above stated nomination of the 3rd defendant contested and won the said election…
9. Consequent upon the said election the 3rd defendant was sworn in as a DPP member representing Ukwani Constituency in the 1st Defendant.
10. Before the election, after the election and till now there has be (sic) no leadership crisis in the 1st plaintiff either at the National, State or Local Government Area of Delta State.
11. There has been no division in the 1st plaintiff. There are no factions in the 1st Plaintiff and the 1st plaintiff has not merged with any political party.
12. For no ostensible reason the 3rd defendant purportedly wrote to me vide a letter dated September 13, 2012 resigning his position as a member of the party “due to the dwindling fortune of the party as exemplified by lack of geographical spread of the party to other parts of the country other than Delta State. The said letter is hereby annexed as Exhibit RON 1”. (Underlining supplied)
Exhibit RON 1 is the letter written by the 3rd Respondent dated 13/9/12 which was addressed to the Chairman, Democratic Peoples Party (DPP) Ward 1, Ukwani Local Government Area, Delta State. The letter was attached to the affidavit in support of the originating summons. The kernel of the letter states as follows:
“RESIGNATION OF MEMBERSHIP
This is to inform you that I have this day resigned my membership of Democratic Peoples Party (DPP). This is due to the dwindling fortune of the party as exemplified by the lack of geographical spread of the party to other parts of the country other than Delta State.
The party is currently engulfed by crisis that has led to factionalism and leadership tussle for the control of the party among other negative developments.
While thanking you for the immense support given me by you and the party, be assured that this decision is in the best interest of Ukwani people.”
In the counter-affidavit sworn to by the 3rd Respondent as 3rd Defendant at the trial court, he swore as follows as shown on Pg. 40 of the record:
“13. That after the election in 2011, the Democratic Peoples Party (1st Plaintiff) became submerged in a serious crisis. That crisis led to a split of the party and several leaders of the party were suspended/expelled from the party and the executive both at the National, State and Local Government levels were dissolved. This fact was common knowledge and was also published in National Newspapers in Nigeria. Herewith annexed as Exhibit A is a copy of Pg. 45 of the Vanguard Newspaper of Wednesday, 22nd August 2012 evidencing the deep crisis in the 1st plaintiff as a political party.
14. As if the said crisis is not enough, on 12/9/2012 the leaders of the party filed a suit before this same Honourable Court in Suit No. FHC/ASB/CS/118/2012 challenging the National Executive of the party and the executives of the party in Delta State and also seeking injunctions against the executives to stop them from acting in their office. Herewith annexed as Exhibit B is a copy of the originating summons in the said suit which s still pending before this Honourable Court.
15. That the plaintiffs in this suit are well aware of the existence of this crisis which has torn the 1st plaintiff (political party) apart.
16. That there are serious crisis in the 1st plaintiff political party.
17. That as a result of the said crisis which has ripped the 1st plaintiff apart in Delta State, a large number of former members of the 1st plaintiff have defected back to the Peoples Democratic Party. I am not the first member of the Delta State House of Assembly to move back to the Peoples Democratic Party (PDP) due to the crisis currently rocking the 1st plaintiff political party.”
On this issue the learned trial judge held as follows on page 79-80 of the record:
“The counter affidavits of the 1st, 2nd and 3rd defendants show that there is an admission of the facts deposed to by the plaintiffs in their affidavit. The 1st and 2nd defendants in paragraphs 3(d)-(h) catalogued the crisis before and after the election in the Democratic Peoples Party (DPP) in particular leadership crisis.
They referred to Suit No. FHC/ASB/CS/118/2012 where the plaintiff alluded to the party being engulfed by crisis that have led to factionalism and leadership tussle for the control of the party. The 3rd defendant extensively set out the various crisis in the Democratic Peoples’ Party (DPP). All parties agreed that the 3rd defendant left the Democratic Peoples’ Party (DPP) to move to the Peoples Democratic Party (PDP) before the expiration of the period for which the current house was elected. As these facts are common to all parties and agreed upon I do not need to dwell on same. Deposition in affidavit are the factual position and where such facts are not controverted by a counter affidavit, the court can act on same; except where they are obviously false. Uzoduma v. Izunaso (2) (2011) 17 NWLR (Pt. 1275) Pg. 30. That is in fact the essence of the present suit.
Within the meaning of the proviso to S.109(1)(g) what will save the seat for the 3rd defendant is the consequence of a division in the 1st plaintiff that is the Democratic Peoples’ Party (DPP) or a merger of one of the splinter group or faction of the 1st plaintiff with other political parties. See the case of Federal Electoral Commission v. Alhaji Mohammed Goni & Anor (1983) LPELR-SC.54/1983. There are crisis. The question to ask is has these crisis led to the breaking up of the party. Has the party divided into groups or factions. Is the party still in existence or has it merged with another.
There is no evidence that these crisis have resulted in the division of the 1st plaintiff. There are no factions. No splinter groups.
The situation described under the proviso to the S. 109(1)(g) has not and did not occur. The proviso does not envisage a future division or merger. The division or merger must have happened. The 3rd defendant is therefore caught by the extant provision of S.109(1)(g). I therefore answer the 1st question raised in the originating summons in the affirmative.”
The most important portion of the Constitution under consideration is the proviso to the said S.109(1)(g). A proviso is meant to curtail and or qualify the provisions of S.109(1)(g) of the Constitution. A proviso creates an exception or relaxes a limitation imposed by any legislation. See NDIC v. Okem Ent. Ltd. (2004) All FWLR (Pt. 210) Pg. 1176 at 1235; Adebusuyi v. INEC (2010) All FWLR (Pt. 545) Pg. 202 at 226-227. The exceptions envisaged by S.109(1)(g) are that there must have been division in the political party, a merger of two or more political parties or factions by one of which the defector was previously sponsored. It brings us to the definition of or what constitutes “division”. I have to make the point that the words “factionalism” or “leadership tussle” are extraneous to the provisions of S.109(1)(g) of the Constitution. In fact the words have different meanings “Faction” is defined by Black’s Law Dictionary – 9th Edition as follows:
“A number of citizens, whether a majority or a minority, who are united and motivated by a common interest that is adverse to the aggregate interests of the community.”
The Collins English Dictionary defines faction as:
“a group of people forming a minority within a larger body especially a dissentions group” or “strife or dissention within a group”.
“Division” is defined in the 8th Edition of the Oxford Advanced Learners Dictionary as:
“The process or result of dividing into separate parts.”
It is my humble view that factions within the con of the Constitution means that there are groups within a larger group who are also still under the umbrella of the same organization. The division envisaged by S.109(1)(g) is when an organization has been dissolved into two parts each claiming independence from each other. Each division may call itself different names with different leaders. A division contemplates the breakdown of an erstwhile cohesive whole into two or more separate parts.
I have looked at the contents of the affidavit and counter affidavit in this case and I have to say that the 3rd Respondent was not able to prove that there was a division in the DPP to enable his action acceptable under the proviso to S.109(1)(g) of the 1999 Constitution.
In FEDECO v. Goni supra, the Supreme Court laid down the decision law on the issue. While the decision supported Senator Goni and he was allowed to change his party, I need to set out all the circumstances in Goni’s case.
Alhaji Mohammed Goni was elected as the Governor of Borno State in the 1979 general elections on the platform of the Great Nigeria Peoples Party (GNPP).
Following disagreement within the GNPP the party split into two factions, the one led by Alhaji Waziri Ibrahim and which was subsequently recognized by the Federal Electoral Commission (FEDECO) and the other led by Dr. Shettima Mustapha, the faction to which Goni belonged.
The Shettima Mustapha faction does not recognize the national officers and governing body of the as registered with FEDECO and has appointed its own national officers and governing body.
The Shettima Mustapha faction held separate meetings but subsequently broke into further groups or factions. One group or faction of which Goni was a prominent member was in favour of merging with the UPN. The other group headed by Shettima Mustapha subsequently merged with the Nigerian Peoples Party (hereinafter called the NPP).
The members of the pro-UPN group of the Shettima Mustapha faction joined up with the UPN en masse. Goni then became a member of the Unity Party of Nigeria before the expiration of his term of office as governor.
Governor Muhammed Goni via an originating summons filed at the High Court of Lagos sought for the determination of the following questions among others.
(a) Whether the determination of the qualification of a person for election to the office of the Governor of a State under S.166 of the CFRN 1979 ought to be made by reference to S.62 of the Constitution or to S.64 thereof, or to both?
(b) If such determination is to be made by reference to S.62 of the Constitution whether the 1st plaintiff is disqualified from contesting election to the office of Governor of Borno State.
(c) If such determination is to be made by any reference to S.64 whether all the grounds for the loss of the seat of a senator specified in paragraphs (a)-(g) inclusive of S.64(1) are capable of being applied to a candidate for election to the office of Governor?
(d) In determining which of the said paragraphs of S.64(1) are capable of being applied thereto is it permissible to alter or substitute for the words, situations and institutions occurring in those paragraphs other words, situations and instructions different from those prescribed therein?
(e) If the answer to the question is in the affirmative, what words, situations and institutions ought to be substituted for which in each of such paragraphs?
(f) If paragraph (g) of S.64(1) one of those which are capable of being made applicable to a candidate for the office of Governor by such alteration or substitution?
(g) If the answer is in the affirmative, whether the circumstances in which the 1st plaintiff became a member of the 2nd defendant (sic) does not preserve hid eligibility for election to the office of governor aforesaid which the scope of the proviso to S.64(1)(g) of the Constitution?
AND the Plaintiff claim the following reliefs:
(i) A declaration that the 1st plaintiff is qualified for election to the office of governor of Borno State.
(ii) A declaration that the purported rejection of the 1st plaintiff as candidate for election to the office of Governor by the defendant is wrongful, ultra vires and void;
(iii) An order directing that the 1st plaintiffs name be restored to the list of candidates for election to the office of Governor of Borno State and that nomination papers in respect of the said election be supplied to the plaintiffs;
(iv) In the alternative, should the orders sought above not granted, that the defendant do supply to the 2nd plaintiff before the date for the close of nominations for the office of governor of a State nomination papers to be used for any alternative or substitute candidate to be sponsored by the 2nd plaintiff.
Goni applied to FEDECO to stand election as a candidate for the governorship of Borno State on the platform of the political party known as the Unity Party of Nigeria (hereinafter referred to as the UPN). FEDECO disallowed his candidature and communicated this to him in a letter dated 16th May, 1983. The Court of Appeal held that there was a division in the GNPP which resulted in Goni joining the UPN. The Supreme Court dismissed FEDECO’s appeal.
When you compare the circumstances in Goni’s case with the circumstances in this case, there is no doubt that the Supreme Court even though very conscious of the purpose for the inclusion of section 64(1)(g) in the 1979 Constitution and the mischief it was meant to cure, supported the position of Goni.
My humble view is that for the person defecting to another party to be able to take advantage of the proviso in S.109(1)(g), he must prove that the party he is leaving has been divided into two or more. That is to say, the party must be so polarized as to have two chairmen, two or three different Boards of Trustees each claiming to be the authentic one and each still bearing the same party name. That is the type or extreme division envisaged by the Constitution. The defector would also be covered by the proviso where the party has split into two whereby one of the factions is bearing another name and he chose to join the faction of the party with the new name. That was the situation envisaged by the Justices of the Supreme Court in FEDECO v. Goni in the NSCC Report at page 489-490 when they opined thus:
“The mischief which the framers of the Constitution wanted to avoid was carpet-crossing which, from our constitutional history in the not distant past had bedeviled the political morality of this country. They had however to allow for a situation where a political party by reason of internal squabbles, had split into one or more factions. A split or division could are without any fault of the members of a political party, resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough, to satisfy the recognition, as a separate political party of the FEDECO. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost. Such a situation is entirely different from the fraudulent and malevolent practice of cross carpeting politicians of yester years who, for financial consideration or otherwise crossed from one political party to another, without qualms and without conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved”.
I may also make the point obiter that it is only INEC really that is in a position to determine in its supervisory role when there is a division in the party to the extent that a party member can be allowed to take advantage of the proviso to S.109(9).
From the clear words of Exhibit RON1 set out above, there is no doubt that the 3rd respondent defected to advance his political career and not because there was any situation that can be characterized as “division” in his party. The 3rd Respondent resigned from his party in his own words “because of the dwindling fortunes of the party” and “crisis” within the party. There is nothing in any of the Exhibits before the trial judge which showed that there was uncertainty, great danger and difficulty, which would amount to a “crisis” in his party during the period before his resignation and defection to another party. This issue is resolved against the appellants.
ISSUE TWO
Whether the lower court was not in given error to have held that the public documents relied upon by the plaintiffs did not require certification – Grounds 5 and 6.
On this issue, learned Appellant’s counsel contended that the learned trial judge relied on uncertified public documents attached to the originating summons to enter judgment for the 1st and 2nd Respondents. The documents are Exhibit RON3, RON 4, RON4A and RON5 were inadmissible being uncertified public documents. Senior counsel cited Fawehinmi v. I.G.P. (2000) FWLR (Pt. 12) Pg. 2015; Ajiboye v. Duro (2010) All FWLR (Pt. 50) Pg. 135 at 177; Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) Pg.713 at 722. See S.102, 104 and 105 of the Evidence Act (as amended). See also Obadina v. Ambrose family (1969) 1 NMLR 25 at 30; Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) Pg. 547 at 571, paragraph A-E; Fawehinmi v. IGP (2000) 7 NWLR (Pt. 665) Pg. 489 at 525; Lawson v. Afani Construction Co. Ltd. (2002) 2 NWLR (Pt. 752) Pg. 585; Yero v. UBN (2000) 5 NWLR (Pt. 657) Pg. 470 at 478-479 and Shyllon v. University of Ibadan (2007) 1 NWLR (Pt. 1014) Pg.1.
Learned senior counsel submitted that Exhibits RON 3, RON 4, RON 4A and RON 5 are inadmissible in evidence for falling short of the standard or requirement of law. To that extent, the lower court was in grave error to have considered or countenanced them in arriving at the decision to grant the declaratory reliefs sought in the originating summons. The reliefs ought have been refused as having no admissible evidence upon which the court could act.
On this issue, learned 2nd Respondent’s counsel argued that the trial court did not rely on the said Exhibit RON 3, RON 5 to arrive at its findings and conclusions. Counsel argued that the portions of the judgment must not be read in isolation. The judgment was based not on the exhibits but on the affidavit which contained enough uncontradicted facts to ground the judgment appealed against. C1-The Exhibits tendered as follows:
1) Exhibit RON1- letter of the 3rd respondent to the 1st respondent dated 13/09/2012 resigning his position as a member of the party.
2) Exhibit RON2- letter of the 3rd respondent to the Chairman of PDP in Ukwuani Local Government dated 14/09/2012.
3) Exhibit RON3-letter dated 17/09/2012 by the 3rd respondent to the 2nd appellant to inform him that he had defected to PDP.
4) Exhibit RON4- proceeding-that is Hansard of 20/09/2012 wherein the 2nd appellant read the letter of the 3rd respondent to the Delta State House of Assembly.
5) Exhibit RON4A- letter dated 24/10/2012 by one Chief Tony Ezeagwu applying for the Delta State House of Assembly proceedings of 20/09/2012.
6) Exhibit RON5- letter written by Engr. Orhierhor Lance to the 2nd Appellant requesting him to declare the 3rd respondent’s seat vacant.
On this issue, the learned trial judge held at Pg.78 of the record as follows:
“There is no doubt that for public documents to be admissible, they must be certified. In the instant case the issue of admissibility does not arise as those documents were not at any time tendered. They form part of a bundle of documents attached to the originating summons. The requirement of certification may therefore be dispensed with.”
The documents in question are Exhibit RON 3, 4, and 4A respectively. All these documents, the parties, and trial court conceded are public documents. It seems to me that the opinion of the learned trial judge on this point is based on a misconception of the proof of evidence in proceedings begun by originating summons. The affidavit in support of the originating summons form the evidence in support of and to be relied on and evaluated by the trial court. The documents to be relied on to support the evidence on oath can only be tendered in a proceedings by way of originating summons by attaching them to the affidavit. They can also be tendered by agreement from the Bar if they are Certified True Copies. The documents have thus been tendered by attaching them and referring to them in the appropriate paragraphs of the affidavit in support of the originating summons. They are the evidence before the court. To say that the documents were not tendered is clearly wrong. See Ajiboye v. Duro (2010) All FWLR (Pt. 507) Pg. 136 at 177; Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) Pg. 713 at 722 and Fawehinmi v. IGP (2000) FWLR (Pt. 12). There is no doubt that the only secondary evidence admissible is certified copy of a document. The documents are hereby declared inadmissible.
In Fawehinmi v. IGP supra, this court per Oguntade held unequivocally as follows:
“It seems to me that where the exhibit concerned is the primary evidence by which it is sought to prove the truth of a particular deposition in an affidavit, the documentary exhibit must satisfy the requirements of S.97 of the Evidence Act. Otherwise it should be ignored or discountenanced…. In the instant case, exhibits GF1, GF2 and GF3 being public documents could only be used if the certified copies of them were produced. If they were documents which by the Evidence Act could only be used in any civil proceedings, it matters not in my view whether they were produced for use in an interlocutory application or a substantive suit. They remain inadmissible in both situations….”
In this case at hand, I agree with learned appellant’s counsel that the substance of the 1st and 2nd respondents case was that the 3rd respondent had defected to another political party. They relied very strongly on a photocopy of the letter dated September 17, 2012 addressed to the 2nd appellant as well as the proceeding of the 1st appellant (attached to the affidavit in support of the originating summons as exhibit RON 4) to establish this critical fact. These documents are public documents within the meaning of S.89 and 90 of the Evidence Act (as amended) and as such only certified copies of them are admissible and can be countenanced. In the absence of any certification, the documents are hereby declared inadmissible.
The purpose for which the documents were tendered were to show that the Appellants had been asked to declare the seat vacant and they had failed to do so hence the attachment of the documents to show the proceedings of the Delta State House of Assembly on 20/9/2012 and the request of the 1st Respondent to the Speaker.
According to the appellant, the issue is whether or not in the absence of these documents, the questions posed for determination by the originating summons could be answered by the learned trial judge in the same terms as it was answered. I think so. The affirmative answer to the first issue for determination in the originating summons suffices to ensure that the reliefs sought by the originating summons could be granted as prayed.
In the circumstances, because the purpose for which the documents were tendered and admitted was not vital to the reliefs claimed, their admissibility has not affected the ratio and the findings and conclusions of the trial court. After all Exhibit RON1 and RON 2 written by the 3rd respondent stating resignation from DPP and return to PDP respectively are clear enough to activate S.109(1)(g) of the constitution.
The appellant made the point that the issue was presented to the House and the House decided in favour of the 3rd respondent. I agree with the learned 2nd respondent’s counsel that that is far from what is on the record before this court. The record of the proceedings merely showed that the 3rd respondent was presented to the House as a new member of PDP and the majority leader of the House took him round for recognition. It is also completely wrong to say that the issue of the duty of the speaker in this regard was never raised at the trial court. In the brief of the 1st and 2nd defendants now appellants at the trial court, reference was made at page 36 of the record to the provisions of S.109(2) of the constitution. On page 53 of the record, the 3rd defendant now 3rd respondent made the point that the condition precedent for the activation of S.109(1)(g) which is S.109(2) had not been met and that the plaintiffs now the 1st and 2nd respondents were mere interlopers with no locus to file the action.
In this regard, the Constitution is quite clear on who activates S.109 where the need arises. S.109(2) provides as follows:
109(2) The speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or a member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member.
I have combed through the constitution and I cannot find any provision in respect of a member of the state House of Assembly which gives any right to the political party or any individual or party member to ask that S.109 be put into effect. The right is given only to the Speaker of the House of Assembly to give effect to S.109(1)(g) after he-the speaker or any other member of the House had presented satisfactory evidence to the House that the subsection has become applicable in respect of the member. My own humble interpretation of S.109(2) is that when a situation as in the instant case occurs, the matter is brought before the State House of Assembly by the speaker or a member of the House and the House has to determine whether the subsection has become applicable in respect of the member. Where the Speaker fails to act, however I am of the view that a party with locus standi in this matter can sue to force the Speaker to take the appropriate actions provided by the Constitution. The 1st and 2nd Respondents in my humble view possess the locus standi to ask for the orders sought.
In the circumstances, even though the first issue is resolved against the appellants, the second issue has to be resolved in their favour. Ordinarily, the appeal would have been allowed in part. However, in view of the decision of this court in CA/B/166/2013, the orders made by the trial court having been set aside, the appeal perforce is hereby struck out. The judgment of Hon. Justice Olatoregun Ishola J. in Suit No. ASB/CS/129/2012 delivered on 1/3/2013 is hereby set aside. I make no order as to costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I am in complete agreement with the conclusion reached concerning the fate of the instant appeal in the lead Judgment.
This appeal has emanated from the judgment delivered on 1/3/2013 in Suit No. FHC/ASB/CS/129/2012 by the Federal High court, Asaba Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice Olatoregun-Ishola (hereafter simply referred to as “the learned trial Judge”).
Appeal No. CA/B/166/2013 between INEC and Democratic Peoples Party and others also emanated from the same judgment. This Court allowed the appeal of INEC as the issue of the breach of its right to fair hearing in the case before the lower court was resolved in INEC’s favour. Having found the appeal to be meritorious, the judgment of the lower court had been set aside and an order remitting the case to the Chief Judge of the Federal High Court for same to be heard by another Judge of that Court made.
In the circumstances, there would appear to be no judgment delivered in the instant case the merits of which this Court can properly consider in the instant appeal. I am aware that this court being an intermediate court of appeal is enjoined to consider all the issues calling for determination in an appeal, There are however instances where this need not be done and they are: (i) where the issue that has been determined has subsumed the other issues in the appeal – see 7-up BOTTLING CO. LTD v. ABIOLA & SONS BOTTLING CO. LTD NSCQLR 6 (2001) 905; and (ii) where an order of retrial is considered appropriate in the circumstances of a case and/or where the issue of breach of fair hearing is upheld and which results in the setting aside of the affected proceeding(s) – see BRAWAL SHIPPING (NIGERIA) LTD v. ONWADIKE CO. LTD (2000) 6 SCNJ 508 at 522. The position of the law as it relates to order of retrial or trial de novo would appear to be informed by the fact that an appellate court should not be seen as deciding the very issues or some of the issues that might call for resolution before the lower court that is to rehear or entertain the case de novo. As it relates to the breach of fair hearing, it would appear that dwelling on the merits of the case would tantamount to the perpetuation of the breach of fair hearing which has afflicted the matter before the lower court, After all an appeal is a continuation of the original case.
In the light of the foregoing, I am in total agreement that the judgment of the lower court having been set aside, and the case remitted for trial de novo, the appeal has no basis. It is accordingly struck out.
I make no order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: I was privileged to have read the draft of the judgment rendered by my Lord, HELEN MORONKEJI OGUNWUMIJU, J.C.A. The issues thrown up in this appeal were so extensively and admirably dealt with in the lead judgment, to my full satisfaction hence I agree that the appeal is allowed in part only. Let me chip in some few comments in support of the lead judgment.
The facts of the case have been adumbrated in the lead judgment. I adopt them.
Section 109(1) (g) and (2) of the 1999 Constitution of the Federal Republic of Nigeria, provides that:
“109(1) A member of a House of Assembly of a State shall vacate his seat in the House if –
(a) ………;
(b) ………;
(c) ………;
(d) ………;
(e) ………;
(f) ………;
(g) Being a person whose election to the House of Assembly was sponsored by one political party, he resigns from that political party or he becomes a member of another political party before the expiration of the period for which that House was elected:
Provided that his membership of the later political party is not as a result of a division in the political party of which he was previously a member or a merger of 2 or more political parties or factions by one of which he was previously sponsored; or
(2) The speaker of the House of Assembly shall give effect to subsection (1) of this section, so however that the Speaker or o member shall first present evidence satisfactory to the House that any of the provisions of that subsection has become applicable in respect of the member.”
The law is well settled that, in its interpretative jurisdiction, the court – the judex, is to interprete and expound the law and not to expand it. That is, it is to determine and pronounce on what the law is, and not what the law ought to be. Chief Felix Amadi & anor. v. INEC and Ors. (2013) 4 NWLR (Pt. 1345) 595 at 633 (SC); (2012) 2 SCNJ (Pt. 1) 163 at 193 – 194; Ladoja v. INEC & Ors. (2007) 12 NWLR (Pt.1041) 115 (SC).
Therefore, words used in a constitutional provision or any other statute, are to be given their ordinary and grammatical meaning. That is, where the words so used are clear and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical construction. Thus, the court cannot import into the provisions, that which was not intended by the framers of the constitutional provisions which will certainly be tantamount to defeating the purpose and intendment of the Legislation. Amadi v. INEC (supra); Nigerian Army v. Brig. General Maude Aminu Kano (2010) 1 SCNJ 250; Amalgamated Trustees Ltd. v. Association of Discount Houses Ltd (2007) 15 NWLR (Pt. 1056) 118 at 156 (SC); Egoluru v. Obasanjo (1999) 5 SCNJ 92; Chief Awolowo v. Alhaji Shehu Shagari (1979) 6-9 SC 51.
Now, in the con of S. 109(1)(g) of the Constitution, was the 3rd respondent able to prove that there was a division in his erstwhile party – the Democratic Peoples’ Party (DPP) before resigning from it? To succeed in proving that fact, the 3rd was obliged to aver and demonstrate that the DPP had been torn into two or three divisions. He needed, to my mind, to aver that the DPP was no longer one piece and one house, but of different names and of course, leaders. This, the 3rd respondent did not do.
However, with respect to S. 109(2) of the Constitution, it seems to me, that to demand that the speaker of the Delta State House of Assembly must willy-nilly declare the seat of the 3rd respondent vacant because he had dumped the DPP for the PDP, is tantamount to taking away the duty from the speaker who must be satisfied that the member dumping his party, “shall present evidence satisfactory to the House that any of the provisions” in subsection (1) of Section 109 “has become applicable in respect of the member”.
So, it is an internal affair of the House, which needed no prodding from any member of the public or the political party of the defector, for the activation of S. 109(2) of the Constitution, against a defector such as the 3rd respondent herein.
It is for these few comments and the more elaborate reasoning contained in the lead judgment, that I, too, allow the appeal in part.
I abide by the order as to costs, contained in the lead judgment.
Appearances
E. O. Erhahon with him
Mrs. G. A. Omente and Miss E. AisienFor Appellant
AND
E. F. Sarwuan – 1st Respondent
R. O. Ndugbu – 2nd Respondent
M. A. Abubakar with him
R. N. Ossai Miss and
Zekeri Garuba for 3rd Respondent
Ahmed Baji SAN with him
O. A. Adeyemi and Kayode Otojo for 4th RespondentFor Respondent
