SOCIAL DEMOCRATIC PARTY & ORS v. PROFESSOR JERRY GANA, CON & ANOR
(2019)LCN/12564(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/A/1174/2018
RATIO
INTERPRETATION: MEANING OF INDIGENESHIP
“In “Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) Page 117 at 146, the Supreme Court made it clear that the coinage of either “residency” or “indigeneship” has no location or habitation under our Constitution, and same cannot be used against any candidate contesting an election or seeking an elective office. The apex Court enthused thus, per Rhodes-Vivour, JSC: ‘The 1st respondent questioned and relied on residency and indigenship of the Appellant to seek her disqualification. Such issues have no place in election matters in Nigeria. They are alien to the Constitution see Section 65(1) of the Constitution.'” PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. SOCIAL DEMOCRATIC PARTY (SDP)
2. CHIEF OLU FALAE, GCON, CFR
(The National Chairman, (SDP)
3. ALHAJI SHEHU MUSA GABAM
(National Secretary, (SDP)
4. PROFESSOR TUNDE ADENIRAN, OFR
(Chairman, SDP Presidential Screening Panel/Deputy National Chairman, South)
5. DONALD DUKE Appellant(s)
AND
1. PROFESSOR JERRY GANA, CON (SDP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/1174/2018 was commenced by a notice of appeal filed 19-12-2018 and a second notice of appeal filed on 21-12-2018 against the judgment of the High Court of the Federal Capital Territory at Abuja delivered on 14-12-2018 in Suit No. FCT/HC/CV/3041/18.
The appellants and 1st respondent herein filed their respective briefs as follows- appellants’ brief, 1st respondent’s brief and appellants’ reply brief. The 2nd respondent filed no brief.
The appellants’ brief stated that it is predicated on their notice of appeal filed on 21-12-2018 and thereby abandoned their notice of appeal filed on 19-12-2018. The said first notice of appeal filed on 19-12-2018 having been abandoned, is hereby struck out.
The appellants’ brief raised the following issues for determination-
1. Having regard to the clear provisions of Sections 131 and 137 of the Constitution, read together with Section 1 (3), 14 and 223 of the said Constitution, whether the lower Court was not in grave error to have nullified the election of the 5th appellant as the presidential candidate of the 1st appellant, wrongly relying on Article 15.3 of Exhibit I ? Grounds 4 and 9.
2. Considering the political question/claim submitted to the lower Court by the claimant, as against the narrow jurisdiction vested in it by Section 87(9) of the Electoral Act, as well as binding decisions of appellate Courts, whether or not the lower Court did not fall into deep error by assuming jurisdiction on the matter before it, and giving judgment against the appellants. Grounds 10, 11 and 13.
3. Whether or not Exhibit I has a retroactive effect- Grounds 1 and 2.
4. Even if Exhibit I has a retroactive effect, whether the lower Court did not wrongly and perversely interpret and construe both Article 15.3 thereof and Exhibit J – Grounds 3, 5, 6 and 8.
5. Considering the entire circumstances of the case before the lower Court, including the totality of evidence adduced as well as binding decisions of appellate Courts, whether the judgment of the lower Court is not perverse and liable to be set aside- Grounds 7, 12 and 14.
The 1st respondent’s brief raised the following issues for determination-
1. Whether the learned Judge of the lower Court was right in his interpretation and application of Article 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (As Amended) with respect to the principle of Zoning and Rotation vis-a-vis Sections 14 and 223 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and in his conclusion that the Amended Constitution, to wit, EXHIBIT “I” came into effect soon after it was amended on 6th October, 2018 and as such EXHIBIT “J” ceased to exist upon its amendment. (Grounds 1, 2, 5, 6 and 9).
2. Whether the learned Judge of the lower Court was right in holding that Sections 130, 131, 137 and 177 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) as well as arguments of learned senior Counsel to the Appellants thereof are inapplicable to this case and whether the learned senior Counsel to the Appellants can capitalize on mere typographical error with specific reference to Article 25.1 of EXHIBIT (J). (Grounds 3 and 4).
3. Whether from the nature and totality/preponderance of available Affidavit and documentary evidence in this case before the lower Court the learned Judge of the lower Court was right in assuming jurisdiction over the 1st Respondent’s case by holding that the 1st Respondent led sufficient evidence in support of his case to entitle him to the claim and that the 1st Respondent cannot waive illegality and thereupon granting the reliefs sought by the 1st Respondent. (Grounds 7, 8, 10, 11, 12, 13 and 14).
I will determine this appeal on the basis of the issues raised in the appellants’ brief.
I will determine them together.
The established and undisputed facts of this case are as follows. On 9-1-2018, the 2nd respondent issued a Time Table and Schedule of Activities for the 2019 General Elections (exhibit D attached to the affidavit in support of the amended originating summons). The said time table indicated that the political parties shall conduct their respective party primaries and resolve all disputes arising therefrom between 18-8-2018 to 7-10-2018. In line with the said time table, on 17-8-2018, the 2nd respondent issued a notice of election (exhibit C) stating that general elections to the office of President of Nigeria and to the National Assembly would hold on 16-2-2019 and elections to the office of Governor of a State and to the Houses of Assembly would hold on 2-3-2019. In response to the said notice of election, the 1st appellant issued a written Special Announcement on Sale of Party Forms for 2019 General Elections (All Categories) (exhibit E), inviting all interested aspirants to the office of President, Governor and Member, National Assembly, in the 2019 general elections to purchase Expression of Interest and Nomination forms from the office of the National Organising Secretary of the 1st appellant and submit the completed forms to its National Secretariat at Abuja on or before the close of work on 7-9-2018.
Attached to the Special Announcement is a “Reviewed Schedule of Activities and Time – Table 2018” stating the closing date for sales, purchase and return of completed forms for all offices as 18-9-2018, the closing date for screening of Presidential aspirants as 2-10-2018, the date for the holding of the National Convention for the Presidential Primaries as 6-10-2018, the date for appeals from the Presidential Primary election as 7-10-2018 and the date for presentation of certificates of return to all candidates as 20-10-2018.
The 5th appellant and 1st respondent who are members of the 1st appellant and aspirants to the office of President of Nigeria, purchased, completed and submitted their Expression of Interest form and Nomination form as required. Both were screened and cleared to contest the Presidential Primary Elections by the Presidential Screening Committee of the 1st Appellant. The Presidential Primary election held on 6-10-2018. Those who contested in the election include Prof. Jerry Gana, Professor Amb. Iyorwuese Hagher, Amb. Felix Osakwe, Donald Duke and Mr John Dara. At the end of voting, each aspirant scored as follows-
“a. Donald Duke – 812 votes
b. Prof. Jerry Gana – 611 votes
c. Mr. John Dara – 104 votes
d. Prof. Amb. Iyorwuese Hagher – 72 votes
e. Amb. Felix Osakwe – 10 votes”
The 5th appellant was accordingly returned as the 1st appellant’s Presidential candidate for the 2019 Presidential election.
The 1st respondent by a letter dated 7-10-2018 and signed same date, complained and appealed against the election and return of the 5th appellant as the 1st appellants candidate on the ground of non compliance with Article 15.3 (i) and (ii)(a) of the 1st appellant’s Constitution because the 2nd appellant, National Chairman of the 1st appellant is from the South and the 5th appellant is from the South, that therefore, the 1st appellant’s Presidential candidate should be from the North and that he, the 1st respondent being the only aspirant from the North, should be the 1st appellant’s Presidential candidate. The letter is exhibit L attached to the affidavit in support of the originating summons.
The 1st respondent filed Suit No. FCT/HC/CV/3041/18 in the High Court of the Federal Capital Territory challenging the election or nomination of the 5th appellant as the 1st appellant’s candidate for the 16-2-2019 general election of President of Nigeria. In the Amended Originating Summons, he raised the following questions for determination-
“1. Whether having regard to Section 87(9) of the Electoral Act, 2010 (as amended) and Article 2 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended), the 1st Defendant is bound by the provisions of Article 1.5.3(i) & (ii)(a) of its own Constitution, to wit, Constitution of the Social Democratic Party, 2018 (as amended) in relation to the principle of rotation of political offices such that the office of the President and National Chairman of the 1st Defendant shall rotate between the South and North and amongst the six (6) geopolitical zones.
2. Whether having regard to Section 223(1)(a) and (b) and (2) (a) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3 (i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended) and given the fact that the National Chairman of the 1st Defendant, the person of the 2nd Defendant is from the South, the office of the President of the Federal Republic of Nigeria for the 2019 Presidential election is not deemed zoned to the North to the exclusion of the South.
3. Whether having regard to Section 223(1)(a) and (b) and (2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 87(9) of the Electoral Act, 2010 (as amended) and Article 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended) which entrenches the principle of zoning and rotation of political offices such that the office of the President and National Chairman of the 1st Defendant shall rotate between the South and North and bearing in mind the fact that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the 5th Defendant was not automatically disqualified from participating in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and from being fielded as the Presidential candidate of the 1st Defendant for the 2019 Presidential election.
4. Whether the participation of the 5th Defendant who is from Southern Nigeria, the same zone with the Defendant in the Presidential Primaries of the 1st Defendant conducted on 6th October, 2018 and his purported return as the Presidential flag bearer or candidate of the 1st Defendant in the 2019 Presidential election is not a gross violation of Article 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended)
5. If the answer to issues 1, 2, 3 and 4 above are in the affirmative whether the purported participation of the 5th Defendant in the Presidential Primaries of the 1st Defendant on 6th October, 2018 ought not to be deemed as null and void and of no effect and the purported votes of 812 votes ascribed to him and /or allegedly scored by the 5th Defendant in the said Presidential Primaries are not deemed wasted votes.
6. If the answers to issues 1, 2, 3, 4 and 5 above are in the affirmative whether the Claimant, a Presidential aspirant from the North who participated in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and who scored 611 votes ought not to be declared as the candidate with majority of lawful votes cast at the said Presidential Primaries and as such the name of the Claimant ought to be forwarded and/or ought to have been forwarded to the 6th Defendant by the 1st Defendant as its Presidential candidate for the 2019 Presidential election.
ALTERNATIVELY
7. Whether by the combined effect of Section 87(1), (2), (7) and (9) of the Electoral Act, 2010 (as amended) and Articles 2, 15.1, 15.2(1), 15.4(i) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP) (as amended), the 1st Defendant is duty bound to issue Guidelines for the conduct of its Presidential Primaries and whether the failure of the 1st Defendant to issue such Guidelines for its Presidential Primaries conducted on 6th October, 2018 rendered the said Presidential Primaries null and void and of no effect whatsoever.”
The 1st respondent claimed for the following reliefs-
“1. A DECLARATION that the 1st Defendant and by extension, all its members are bound by the provisions of Articles 2 and 15.3(i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) in relation to the principle of rotation of political offices to the effect that the office of the President and National Chairman of the 1st Defendant shall rotate between the South and North and amongst the six (6) geo-political zones in Nigeria.
2. A DECLARATION that by reason of Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Articles 2 and 15.3(i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) and given the fact that the National Chairman of the 1st Defendant, that is to say, the 2nd Defendant is from the South, the office of President of the Federal Republic of Nigeria for 2019 Presidential Election from the perspective of the 1st Defendant is deemed to have been zoned to the North to the exclusion of the South.
3. A DECLARATION that by virtue of Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3 (i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) which entrenches the principle of zoning and rotation of Political offices to the effect that the President and National Chairman of the 1st Defendant shall rotate between the South and North, the 5th Defendant was disqualified or stood disqualified from participating in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and from being fielded as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election more so that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the same zone with the 5th Defendant.
4. A DECLARATION that the participation of the 5th Defendant who is from Southern Nigeria in the Presidential Primaries of the 1st Defendant conducted on 6th October, 2018 and his purported return as Presidential Candidate of the 1st Defendant in the 2019 Presidential Election is a gross violation of Articles 2 and 15.3 (i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) more so that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the same zone with the 5th Defendant.
5. A DECLARATION that the participation of the 5th Defendant in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and the purported votes of 812 votes allegedly scored by the 5th Defendant in the said Presidential Primaries are null and void and of no effect and as such the 812 votes ascribed to the 5th Defendant thereof are deemed wasted votes.
6. A DECLARATION that the Claimant, a Presidential aspirant from the North who participated in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and who scored 611 votes ought to be declared as the candidate with majority of lawful votes cast at the said Presidential Primaries.
7. A MANDATORY ORDER compelling the 1st, 2nd,3rd and 4th Defendants to substitute the name of the 5th Defendant already forwarded to the 6th Defendant with the name of the Claimant as the Presidential Candidate of the 1st Defendant of the 2019 Presidential Election.
8. A MANDATORY ORDER compelling the 6th Defendant to accept the name of the Claimant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election and /or substitute the name of the 5th Defendant with the name of the Claimant as the Presidential candidate of the 1st Defendant for the 2019 Presidential Election.
9. A PERPETUAL INJUNCTION restraining the 5th Defendant from parading himself as the Presidential Candidate of the 1st Defendant in the 2019 Presidential Election with respect to the office of the President of the Republic of Nigeria.
10. A PERPETUAL INJUNCTION restraining the 1st, 2nd, 3rd and 4th Defendants from holding out, supporting, sponsoring and/or campaigning for the 5th Defendant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election with respect to the office of the President of the Federal Republic of Nigeria.
ALTERNATIVELY
11. A DECLARATION that by the combined effect of Section 87(1), (2), (7) and (9) of the Electoral Act, 2010 (as amended) and Articles 2, 15.1,15.2(i), 15.4(i) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended), the 1st Defendant is duty-bound to issue Guidelines for the conduct of its Presidential Primaries and as such the failure of the 1st Defendant to issue such Guidelines for its Presidential Primaries conducted on 6th October, 2018 rendered the said Presidential Primaries null and void and of no effect whatsoever.
12. AN ORDER setting aside and/or nullifying the Presidential Primaries conducted by the 1st Defendant on 6th October, 2018 as completely null and void and of no effect for want of compliance with Articles 15.1, 15.2(1), 15.4(i) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended).
13. ANY FURTHER CONSEQUENTIAL RELIEF(s) as the Honourable Court may deem just and expedient in the circumstances.”
The trial Court, after considering the affidavit and accompanying documents in support of the amended originating summons, the counter affidavit and accompanying documents in opposition of the claim and the addresses of Learned Counsel to both sides, held thusly- “In all, the case of the Claimant succeeds and for the avoidance of doubts I make the following orders:
1. I hereby declare that the 1st & 4th Defendants are bound by the provisions of the 1st Defendant’s amended constitution (i.e. exhibit I).
2. I declare that by virtue of Articles 2.1 and 15.3(i) (ii) (a) of the Constitution of the 1st Defendant the 5th Defendant was not qualified to participate in the primary election conducted by the 1st Defendant on the 6th day of October, 2018.
3. I declare that the votes ascribed to the 5th Defendant in the primary election conducted by the 1st Defendant on the 6th day of October, 2018 are invalid and therefore declared null and void.
4. I declare that the Claimant having polled the highest number of valid votes at the said primary election is the winner.
5. I also declare that the act of forwarding the name of the 5th Defendant by the 1st Defendant to the 6th Defendant is irregular and hereby set aside.
6. I hereby direct the 1st & 4th Defendants to substitute the name of the 5th Defendant already forwarded to the 6th Defendant with the name of the Claimant who has pooled the highest valid votes.
7. An Order is hereby made restraining the 5th Defendant from parading himself as the Presidential candidate of the 1st Defendant in the 2019 general election.”
I have calmly and carefully read all the arguments in the briefs of the appellants and the 1st respondent on all the issues raised for determination in the appellant’s brief.
The central question thrown up by all the arguments is whether the trial Court was right to have declared the 5th appellant not qualified to participate in the 1st appellant’s primary election of 6-10-2018 and nullified his election as the presidential candidate of the 1st appellant for February 2019 general elections to the office of President of the Federal Republic of Nigeria.
The substance of the arguments of Learned SAN for the appellant under issues Nos. 1, 2, 3, 4 and 5 is that the trial Court was wrong in declaring that the 5th appellant was not qualified to participate in the 6-10-2018 1st appellant’s Presidential Primary election and was wrong to have nullified his election as the Presidential candidate of the 1st appellant for the February 2019 general elections. Learned SAN for the 1st respondent argued that the decision of the trial Court was justified.
It is clear from the terms of the judgment of the trial Court that its grant of the above reproduced reliefs was predicated on its views that the existence of the aspirant’s right to participate in the 1st appellant’s 6-10-2018 Presidential primary election is determined by the Constitution of the Social Democratic Party as amended in May, 2018 (exhibit I), ratified and adopted by its National Convention of 6-10-2018 as its Constitution and not the one immediately preceding it, namely the Constitution as amended 2011/2012 (exhibit 3) and that by the provisions of Article 15.3 (i) and (ii)(a) of the Constitution ratified and adopted on 6-10-2018 (exhibit I), if the office of the National Chairman of the Social Democratic Party is in the Southern part of Nigeria as in this case, its Presidential candidate for a general election to the office of President of Nigeria must come from the Northern part of the country and that therefore persons from the southern part of the country, such as the 5th appellant in this case, would not be qualified to be the party’s Presidential candidate for the election taking place in 2019.
It is noteworthy that the 2011/2012 Constitution (exhibit 3) that governed the conduct of the affairs of the 1st appellant up to 6-10-2018 and shortly thereafter did not provide for the rotation of the office of President of Nigeria and National Chairman between Northern and Southern Nigeria and between the six geopolitical zones. The 2018 amended Constitution (exhibit I) ratified and adopted on 6-10-2018 introduced the provision for this rotation.
The exact of the part of the judgment of the trial Court deciding which of the two Constitutions governed the right of all interested aspirants to participate in a presidential election primary and the processes leading to the presidential primary election of 6-10-2018 reads thusly- “I have considered the argument of the parties on this issue and my first reaction is that the point is overblown by the respective senior counsel. Be that as it may, it is my respectful view that the authority for determination of how and when exhibit (J) was amended is Article 25.1 of the exhibit. It provides in part:
“The provision of this Constitution shall be subject to amendment if it is so decided by a minimum of two-third of financial members of the party present and voting at the National Convention.”
From the documents filed by the parties in this case it is clear to me that they are at ad-idem that the National Convention took place on the 6/10/2018. It follows that the effective date of amendment of exhibit (3) is the said day and exhibit (I) came into force after the ratification and adoption of same. In that regard I agree with the senior counsel to the 1st & 5th Defendants that as a Constitution of the 1st Defendant (exhibit “I”) does not have a retrospective effect. See the authorities cited by the senior counsel on this point.
On the other hand I disagree with the senior counsel to the Claimant that the amended Constitution took effect on the 30/5/2018 or any other date before the 6/10/2018 when it was ratified and adopted.
Similarly I do not agree with the senior counsel to the 1st – 5th Defendants that exhibit (I) having been adopted on the 6/10/2018 came into effect on a later date after 6/10/2018. The authorities cited and relied upon by the senior counsel to the 1st & 5th defendants did not say so and learned senior counsel did not refer me to any other provision or principle of law upon which he based his submission. Rather, the true position is that in the absence of any provision stating clearly that the amended Constitution would take effect from a later date, it is my humble view that the amended Constitution took effect as soon as it was ratified and adopted at the National Convention. The fact that the new logo and flag provided in Article 4 of exhibit (I) was being used before the ratification of exhibit (I) does not mean that in law it had come into operation.
In my mind the fact that the new logo which was used in the nomination and screening exercise had to be ratified at the Convention confirmed the fact that the 1st Defendant started conducting its affairs in line with the new constitution before it came into force. The choice of the word “ratification” and thereafter “adoption” was intentional.
Ratification by definition is a confirmation or adoption of an act that has already been performed.
So having so ratified the exercise of the screening and nomination of candidates for the primary election it is deemed to have been carried out under the new constitution and not the old one. If therefore any right was acquired by the parties, it was acquired under the new constitution and the issue would then be whether or not they were validly acquired.
It follows by necessary implication that after exhibit (J) was amended at the National Convention it ceased to exist. A nonexistent document cannot regulate the conduct of election after it has ceased to exist. As a matter of fact, the programme of events for the 2018 National Convention of the 1st Defendant exhibited to the counter affidavit of the 1st to 5th Defendants as exhibit SDP1 was designed in a way to first of all adopt the amended Constitution for it to regulate the conduct of Primary Election.
More interesting is exhibit SDP6 which was the report of the proceedings at the National Convention of the 1st Defendant forwarded to the Chairman of the 6th Defendant, where it was clearly stated in part 1(iv) as follows-
“The National Convention agenda was to:
i. Ratify and adopt the party’s Constitution as amended
ii. Ratify and adopt the revised manifesto of the party 2018
iii. Ratity and adopt the revised logo of the party and;
iv. Ratify and adopt the National Executive Committee (NEC) of the party as enshrined in the amended 2018 SDP’s Constitution”.
It is my respectful view that the fact that item (iv) on the agenda stated above was carried out in compliance with the amended 2018 Constitution shows that exhibit (I) had come into effect and operational soon after it was adopted. It is therefore irreconcilable for the 1st Defendant who had started implementing the amended Constitution to revert to exhibit (J) in the conduct of its Primary Election which was an item conducted later in point of time.
In this case Article 25.1 of exhibit (3) which is a saving provision is not helpful to the 1st to 5th Defendants as the construction put on the saving provision is altogether misplaced. In as much as the Article talks of validity of documents it cannot be construed to apply to the conduct of the screening of candidates and the primary election that follows.
From all that I have said I do not have any doubt that it is exhibit (J) which regulates the Primary Election of 6/10/2018. On that score the 1st to 5th Defendants are overruled and issue one is resolved in favour of the Claimant.”
Learned SAN for the appellants argued that the judgment of the trial Court on this point is contradictory, that the trial Court that had earlier held that the constitution in exhibit I does not have a retrospective effect later contradicted itself by holding that by the 6-10-2018 ratification of the May, 2018 amended Constitution, the pre-election processes before 6-10-20181 such as the screening and nomination of aspirants would be deemed to have been done under the Constitution exhibit I, that the screening and nomination of the aspirants was done under the Constitution in exhibit J and not under the 6-10-2018 ratified Constitution (exhibit I), that the mere fact that Exhibit J was amended or replaced by Exhibit I would not affect its previous operation or anything duly done or suffered under it; it would not also affect any right, privilege, obligation or liability accrued or incurred under it; it would also not obscure or wipe off any investigation or screening or proceedings conducted under it, that arising from the foregoing, it is submitted that Exhibit J and not Exhibit I regulated all the procedures and proceedings leading to the emergence of the 5th appellant and 1st respondent as qualified candidates to contest the primary election of 6th October, 2018. Exhibit I, therefore, could not have been applied by any imagination to cover such exercises, that vested or accrued rights are protected even under subsequent legislations.
For the above submission he relied on S.6(1)(a), (b), (c), (d) and (e) of the Interpretation Act and the judicial decisions in M.W.T. Nig. Ltd v PTF (2007) 15 NWLR (Pt 1058) 451 at 477-479, Lakanmi v Adene (2003) 10 NWLR (Pt 828) 353 at 375, Abaye v Ofili (1986) 1 NWLR (Pt 15) 134 at 146 and Anigbogu v Uchejigbo (2002) 10 NWLR (Pt 776) 472 at 489.
Learned SAN for the 1st respondent has argued in reply that it is common ground that the Amended Constitution of the 1st Appellant was ratified at the National Convention of the 1st Appellant on 6th October, 2018, that the definition of the word “Ratification” by the learned Judge of the lower Court is flawless, that EXHIBIT “3” ceased to exist upon the ratification of its amendment on 6th October, 2018, that it is therefore inconceivable to contend that EXHIBIT “3” regulated the Party Primaries of 6th October, 2018, that the processes leading to Party Primaries as well as the Party Primaries conducted by the 1st Appellant on 6th October, 2018 were not concluded before the amendment to EXHIBIT “J” was ratified vide EXHIBIT “I”, that the implication is that the 5th Appellant had not acquired any conclusive right under EXHIBIT “J” capable of being saved by virtue of Section 6 (1) (a), (b), (c), (d) and (e) of the Interpretation Act as contended by the Appellants, that EXHIBIT “J” was rendered obsolete upon its amendment and as such incapable of safeguarding any assumed acquired rights by the 5th Appellant, that the trial Court was right to have held that the screening and nomination of candidates for the primary election is deemed to have been carried out under the new Constitution in exhibit I and not under the old one (exhibit J), that the fact that the National Executive Committee of the 1st appellant as enshrined in exhibit I was ratified and adopted shows that the appellant had started implementing exhibit I before the adoption, that since the 1st appellant had started implementing exhibit I, the primary elections cannot be said to have been conducted under exhibit J.
Let me now determine the merits of the above arguments of both sides.
It is not in dispute that the ratification and adoption of the 2018 amended Constitution (exhibit I) was on 6-10-2018, and that on 8-10-2010, the appellant wrote to the 2nd respondent sending the ratified and adopted amended Constitution to it and that before these processes, the 2011/2012 Constitution of the 1st appellant (exhibit J) governed the conduct of its affairs. It was the applicable and prevailing Constitution then. It is obvious from the 2018 Reviewed Schedule of Activities and Timetable that is attached to exhibit E (the Special Announcement of sale of nomination forms at pages 494 and 495 of the record of this appeal) that the pre-election processes for the nomination of the 1st appellant’s House Assembly, Governorship, House of Representatives and Senate candidates for the 2019 general elections were concluded with the holding of the primary elections to nominate such candidates on 23-9-2018, 24-9-2018, 25-9-2018 and 28-9-2018 respectively. The appeals from those elections ended on 27th and 28th September, 2018. The 2011/2012 Constitution (exhibit J) was then the prevailing Constitution. So the 1st appellant’s candidates for the Houses of Assembly, Governorship and National Assembly in the 2019 general elections were elected or nominated by primary elections conducted under the then prevailing Constitution.
All the pre-election processes for the nomination of the 1st appellant’s candidate for the office of President of Nigeria in the 2019 general elections were concluded before 6-10-2018, except the holding of the election primary itself and the appeal therefrom which held on 6-10-2018 and 7-10-2018 respectively. The Presidential primary election processes that took place before 6-10-2018 include the 1st appellant’s Special Announcement (exhibit E) to all interested aspirants to purchase and submit expression of interest form and nomination form not later than 7-9-2018, the issuance of the 2018 Reviewed Schedule of Activities and Timetable attached to the Special Announcement, the purchase, completion and submission of expression of interest form and nomination form by all aspirants for nomination as Presidential candidate, on or before close of work on 7-9-2018 and the screening of aspirants on 2-10-2018. These processes leading to the presidential primary election were obviously conducted when the 2011/2012 Constitution (exhibit J) governed the conduct of the affairs of the 1st appellant. Article 16(i) therein provides for the holding of primary elections to determine the candidates of the party for general elections to government positions. The exact reads thusly- “All elective party positions shall be filled and nominations of candidates to contest any position in government shall be made and no person shall assume any elective party position or become nominated as candidate of the party for election into any position in government except by democratic process of Open Secret Ballot System.”
The appellant had long fixed the holding of the Presidential primary election for 6-10-2018 by the National Convention.
The 1st appellant had in the 2018 Reviewed Scheduled of Activities and Timetable issued along with the Special Announcement in exhibit E before 7-9-2018, stated that the Presidential Primary election was to be done by the National Convention. This was obviously in keeping with Article 13.1 (2) of the 2011/2012 Constitution (exhibit J) which governed the conduct of its affairs then. The said Article 13.1 (2) provides thusly- “The National Convention shall be the Party’s Supreme authority on matters within its competence particularly as regards the election of the Party’s Presidential candidate and ratification of the nomination of the Vice-Presidential candidate.”
The 1st appellant’s Guidelines for its 2018 Presidential Primary is exhibit SDP2 attached to the counter affidavit of the appellants in opposition to the amended originating summons. The Guidelines which were dated 10-7-2018 state that the National Convention of the 1st appellant shall elect or nominate its presidential candidate. It is obvious that as at 10-7-2018, when those guidelines were issued, the 2011/2012 Constitution (exhibit J) governed the conduct of the affairs of the 1st appellant. The 1st respondent’s assertion with more that no such guidelines was issued is invalid in the light of exhibit SDP2.
The 5th appellant’s right to participate or contest in the 1st appellant’s primary election of 6-10-2018 to nominate its candidate for the 2019 general election to the office of President of Nigeria accrued to him and became vested in him when he responded to the Special Announcement in exhibit E, purchased, completed and submitted the form of expression of interest to be nominated as the party’s presidential candidate and the nomination form on or before close of work on 7-9-2018 and was screened and cleared to contest the said primary election. It is obvious that this right accrued to him when the 2011/2012 Constitution governed the conduct of the 1st appellant’s affairs. So his said right accrued under that Constitution before 6-10-2018 when he exercised that right by contesting in the presidential primary elections.
In spite of the foregoing, the trial Court held that it is the 2018 amended Constitution ratified and adopted on 6-10-2018 that regulated the pre-election processes that had taken place before 6-10-2018 and the holding of the presidential primary on that same day. The reasons it gave for this conclusion are in my view clearly not valid.
One of the reasons it gave was that “as a matter of fact the programme of events for the 2018 National Convention of the 1st Defendant exhibited to the counter affidavit of the 1st to 5th Defendants as exhibit SDP1 was designed in a way to first of all adopt the amended Constitution for it to regulate the conduct of the primary election”. There is nothing in exhibit SDP1 or even in exhibit SDP6, the report of the proceedings of the National Convention of 6-10-2018 that stated or by any means suggested that the National Convention first ratified and adopted the 2018 Constitution (exhibit I) so as to use it to regulate the Presidential primary election it was to hold later that day. The trial Court did not say it was an inference it made from the sequence of the programme of activities for that day in SDP1. It held that as a matter of fact the programme of events was designed in a way to first adopt the amended Constitution for it to regulate the Presidential primary election. There is no evidence of that fact. In any case such an inference cannot even be made from only the sequence of the activities on that day or from the fact that the ratification and adoption of the Constitution took place before the holding of the Presidential primary election.
The National Convention could not have intended to first ratify the 2018 amended Constitution so that it can regulate the Presidential Primary Election to hold later that day, when it knew that the amendment which was made that day would not be effective until it is registered with the Independent National Electoral Commission as required by S.222(d) of the 1999 Constitution. At the time the Presidential Primary election held, the said amendment of the Constitution had not even been forwarded by the 1st appellant to Independent National Electoral Commission (INEC).
It is clear from exhibit SDP3 (attached to the counter affidavit in opposition to the amended originating summons) that it was on 8-10-2018 that the 1st appellant sent the ratified and adopted amended Constitution, revised manifesto and revised logo to the 2nd respondent herein. Exhibit SDP3 is a letter dated 8-10-2018 written by the 1st appellant to the 2nd respondent, forwarding to the later, the ratified and adopted amended Constitution, revised manifesto and revised logo for its further necessary action. It is obvious that the ratified and adopted 2018 constitution was forwarded to the 2nd respondent in keeping with S.222(d) of the 1999 Constitution which provides that “No association by whatever name called shall function as a political party unless- any alteration in its registered constitution is also registered in the Principal office of the Independent National Electoral Commission within thirty days of the making of such alteration”. It is obvious from this provision that an amendment or alteration of the Constitution of a political party would not take effect until the amendment or alteration is registered with the 2nd respondent herein, for it cannot function as a political party until the alteration of its Constitution is registered with the Independent National Electoral Commission.
It means that the alteration is inoperative until it is so registered. Therefore the holding of the trial Court that the 2018 amended Constitution (exhibit 3) took effect from 6-10-2018 when it was ratified and adopted by the National Convention and not on a later date thereafter is not correct. The amendment of the Constitution was made on 6-10-2018 when the National Convention ratified and adopted the amendment. But the amendment was not registered with the 2nd respondent on 6-10-2018. Exhibit SDP3 shows that it was on 8-10-2018 that the 1st appellant wrote to the 2nd respondent forwarding to it a copy of the amended constitution ratified and adopted on 6-10-2018. So as at 6-10-2018, the 2018 amended Constitution had not become operative by virtue of S.222(d) of the 1999 Constitution.
The holding of the trial Court that the National Convention ratified the screening and nomination of candidates for the primary election is perverse. What the Convention ratified are listed in exhibits SDP1, SDP3 and SDP6. The screening and nomination of candidates for the primary election is not included amongst the matters ratified. Those matters already mentioned herein were even reproduced in the judgment of the trial Court as the amended constitution, the revised manifesto, the revised logo and the National Executive Committee of the party as provided for in the amended Constitution.
Also, the holding of the trial Court that the new logo was used in the nomination and screening exercise is perverse. There is no evidence of such use.
The holding of the trial Court that the 1st appellant had started implementing the 2018 amended Constitution (exhibit I) before 6-10-2018 or started doing so on 6-10-2018 is wrong. The 1st appellant could not have started conducting its affairs under the 2018 amended Constitution before the amendment was ratified and adopted by the National Convention. It is only the National Convention that can amend its Constitution by virtue of Article 25.1 of the 2011/2012 Constitution (exhibit J) which provides thusly-
“25.1 Amendment of the Constitution:
The provisions of this Constitution shall be subject to amendment, if it is so decided by a minimum of two-thirds of financial members of the party present and voting at the national Convention provided that notice of such amendment shall have been filed with the National Secretary not less than 30 days before the date of the National Convention and circulated not less than 14 days before the date of the convention.”
So until the National Convention of the 1st appellant ratified and adopted the amended Constitution (exhibit I) on 6-10-2018, it remained a mere proposal for amendment. After the National Convention ratified and adopted it, it did not become operative on the same 6-10-2018 when it was ratified. It only became operative from 8-10-2018 when it was sent to the 2nd respondent for further necessary action. So, the 2011/2012 Constitution (exhibit J) continued to govern the conduct of the affairs of the 1st appellant up to the 8-10-2018. The holding of the trial Court that the amended Constitution became operational immediately upon its ratification and adoption is wrong.
It is glaring from the terms of the judgment, that it is not consistent in deciding which Constitution between exhibits I and J governed the conduct of the affairs of the 1st appellant before 6-10-2018. In one breath it held that exhibit I came into force after its ratification and adoption on 6-10-2018, that it does not have a retrospective effect and so did not take effect on 30-5-2018 or any other date before 6-10-2018 when it was ratified and adopted, that the fact the new logo and flag provided in Article 4 exhibit I was being used before the ratification of exhibit 3 does not mean that in law it had come into operation. In another breath it held that following the said ratification and adoption of the Constitution, the exercise of the screening and nomination of candidates for the primary election is deemed to have been carried out under the new Constitution and not the old one and that therefore any right acquired by the parties, was acquired under the new Constitution.
Assuming the 2018 amended Constitution (exhibit J) was effective and operational on 6-10-2018 when it was made, would it have immediately deprived the 5th appellant the right to participate or contest the Presidential Primary election already fixed to take place that same 6-10-2018 or can it operate to invalidate the election of the 5th appellant as the 1st appellant’s Presidential Candidate for the 2019 general elections.
The trial Court after wrongly holding that the 2018 amended Constitution became effective upon its ratification and adoption on 6-10-2018, proceeded to determine this issue and decided thusly- “This now takes me to whether or not Article 15.3(i)(ii)(a) which is the crux of the Claimant’s matter was breached by the 1st Defendant in the conduct of its primary election on the 6th October, 2018. To do so I need to set out the provisions of the said Article:
Article 15.3-Rotation and zoning of offices
Article 15.3(i)-
“The party shall adhere to the principle of zoning and rotation of political offices based on the principle of inclusiveness, justice, equity and fairness to all.”
Article 15.3(ii)-
“The party therefore shall observe the following;
(a) The office of the president and National Chairman of the party shall rotate between the South and North and amongst the six geo-political zones”.
Now the respective senior counsel have given different interpretation to the above provisions. This shouldn’t be so. This is simply because the operative words in the provision are to the effect that the zoning and rotation among the two offices of the Chairman of the party and the office of the President is between the North and South. After this formula has been achieved, then the respective offices can be rotated amongst the geo-political zones.
Now returning to Article 15.3 (i) of exhibit I (the amended constitution) one would discover that the principle of zoning and rotation of offices is stated to be based on the principle of inclusiveness, justice, equity and fairness to all. This is the philosophy behind the provision of this Article. That being the case an interpretation which would suggest that the rotation of offices should be between the geo-political zones in the South to the exclusion of the North is clearly antithetical to justice, equity and fairness to all.
Looking at the philosophy behind the principle of rotation and zoning of offices it is clear that what was set out to be achieved is to ensure that the two most important offices of the President and the party Chairman are not kept in the same part of the country at anytime. The idea of zoning is to give an impression of a national outlook in the affairs of the party and to ensure equity and justice. That being the case the interpretation put on Article 15.3 by the learned senior counsel to the 1st ? 5th Defendants if accepted would not reflect the intention behind the provision and would therefore be antithetical to the principle of inclusiveness, justice, equity and fairness to all.
On the basis of this, I must hold as I should that the rotation and zoning of offices is between the North and South and not between the six geo-political zones.
Furthermore, this Article which is meant to achieve justice, equity and fairness does not negate any provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This is because the Constitution itself is premised on the same or similar philosophy. See Sections 14 and 223 of the Constitution which the counsel to the Claimant alluded to in his questions for determination.
At this point I must also state that the argument of the learned senior counsel to the 1st & 5th Defendants that Article 15.3 of the party constitution (exhibit I) has made “residency” and “indigeneship” as a qualification for the primary election is not correct. He would have been correct if the provision had simply said that one cannot vie or be nominated for the office of President if the person is from the North or from any part of the country. But in this case what the 1st Defendant has provided for in the amended constitution is an orderly arrangement that would ensure how and when a party member from any part of the country would aspire for the position of the Chairman or office of the President.
Finally Article 15.3 can be liken to a condition precedent to doing a particular thing. A condition precedent normally provided in some statute as has been pronounced in numerous cases is not an ouster clause or a device adopted to prohibit access to the Court of law. The Article has merely provided when and how a party member could be nominated. It is not a denial of right to vie or to be nominated.
See: ATOLAGBE & ANOR V. AWUNI & ORS (1997) 9 NWLR (PT.522) 536 and MAGBAGBEOLA V. AKINTOLA (2018) 11 NWLR (PT. 1629) 177 AT 194-196 PARAGRAPHS E-C and page 198 paragraphs E-F.
Now having approved the validity of Article 15.3 the next question is whether or not the 5th Defendant who admittedly is from Cross River State in the Southern part of the country was a lawful candidate in the primary election conducted by the 1st Defendant on the 6th October, 2018. This question becomes obvious in the face of the fact that the 2nd Defendant as Chairman of the 1st Defendant is also from the Southern part of the country. The answer to this question is obviously no.
Finally on law and facts the Claimant has led sufficient evidence in support of his case to entitle him to the claims sought. It is therefore not true as stated by the senior counsel to the 1st & 5th Defendants that the requirements in a declaratory judgment has not been met by the Claimant.
What has played out in this case is that the 5th Defendant who is not eligible to participate in the primary election of 6th October, 2018 was allowed to contest and returned as the winner. This is a contravention of the party constitution which as has been held in a plethora of cases cannot be allowed to stand. It is an exercise in futility as the votes ascribed to him are null and void. See UZODINMA V. IZUNASO (Supra).
Learned senior counsel to the 1st & 5th Defendants has equally claimed that the 5th Defendant’s name was forwarded to the 6th Defendant in compliance with Section 87(4) of the Electoral Act. This argument in my view cannot stand in the face of a clear violation of the party constitution as the law presumes that the candidate or aspirant whose name should be forwarded to the 6th Defendant must be the one with the highest number of valid votes. It is because the votes ascribed to the 5th Defendant are not valid that the Claimant has filed this action pursuant to his right under Section 87(9) of the Electoral Act, 2010 (as amended).
The learned senior counsel to the 1st & 5th Defendants has also argued that the Claimant signed an understanding to abide by the result of the primary election that would be conducted and so he is estopped from complaining about the outcome. This argument in my view is misconceived as the law is clear that he cannot waive his right over illegality. The term illegality has been defined to connote an infraction of the law or that which is contrary to the principle of law. See: A-G EKITI STATE & ORS V. DARAMOLA & ORS (2003) 10 NWLR (PT.827) 104.
Hence, where as in this case the 1st Defendant has fielded the 5th Defendant in the primary election in violation of Article 15.3 of its own Constitution it cannot lie in the mouth of the Defendants that the Claimant promised to support anybody who emerges. The other side of it is that even if he promised to support whoever emerges as the winner, it must be the winner that has validly or lawfully emerged.”
I have calmly and carefully read the 2018 amended Constitution (exhibit I), I have not seen any provision therein that expressly states that a member of the party from any part of the country shall not aspire to be nominated as the party’s Presidential Candidate in a general election if the holder of the office of National Chairman of the party at that material time is from his part of the country.
Article 10. 2 (vi) of the Constitution in exhibit I that 1st respondent relied on for his claims, provides as one of the rights of a member of the party thusly- “Each member of the party shall subject to the provisions of this constitution be guaranteed equal opportunity to vote and be voted for without prejudice to the electoral guidelines of the party”.
The trial Court has interpreted and applied Article 15.3(ii)(a) of the same exhibit I as taking away this right of equal opportunity to be voted for in a presidential primary election of the party where the exercise of that right would result in the presidential candidate of the party coming from the same part of the country as the current holder of the office of National Chairman of the Party. The trial Court has interpreted it as stating that the offices of National Chairman of the Party and the Presidential candidate of the party for an election cannot be held at the same time by persons from the same part of the country and that since the present National Chairman of the Party is from the Southern part of the country, no party member from the Southern part of the country can aspire to be the Presidential candidate of the Party for the next elections. There is nothing in Article 15.3(ii)(a) or any part of exhibit I that state or even suggest so. It is obvious from the clear wordings of that provision that it merely lists the offices that shall rotate between the South and North and amongst the six Geopolitical zones.
The holding of each of the listed offices is to rotate between the different parts of the country listed therein. So that if one part holds the office for a certain period, it becomes the turn of another part to hold it. The clear intendment is to avoid one zone holding such office permanently to the exclusion of other zones. The wordings of that Article do not support the meaning given to them by the trial Court. The provision did not state or suggest that if a person from one part of the country is already holding the office of National Chairman of the party, no person from that part can be the presidential candidate of the party in an election, only persons from the other part of the country can be such candidate.
On the basis of its wrong view of the meaning of the said provisions of Article 15.3 (ii)(a), it held that the election of the 5th appellant as the Presidential candidate of the 1st appellant during the tenure of the 2nd appellant from the South as National Chairman of 1st appellant is a violation of Article 15.3(ii)(a) and declared the 5th appellant’s election invalid. This decision of the trial Court is wrong.
‘Assuming Article 15.3 (ii)(a) of exhibit I did state that a person from the same part of the country as the current National Chairman of the party cannot be the presidential candidate of the party in a general election, it cannot operate as to deprive the 5th appellant of a right to contest the 6-10-2018 Presidential Primary election he had acquired before 7-9-2018 under the previous Constitution (exhibit J) when he purchased, completed and submitted the expression of interest form and nomination form, which right was confirmed when he was screened and cleared to contest the primary election on 2-10-2018, when the 2011/2012 Constitution (exhibit J) governed the conduct of the 1st appellant’s affairs. Exhibit J does not contain any provision on rotation of the holding of any offices between North and South Nigeria. It is exhibit I that introduced that provision. But exhibit I was not yet operational when the 5th appellant acquired the right to contest the primary election and when he contested and won the primary election.
I agree with the submission of Learned SAN for the 1st appellant that the trial Court having held that “the Constitution of the 1st defendant (exhibit I) does not have retrospective effect”, should not have gone further to hold that by virtue of the ratification and adoption of the 2018 amended Constitution, pre-election processes carried out before 6-10-2018 are deemed to have been done under the new Constitution and that the rights acquired by an aspirant before 6-10-2018 is acquired under the new Constitution. This later holding is illogical and incongruous. What is not retrospective cannot be treated as relating back to affect rights and processes existing before it.
The trial Court correctly stated the law that the amended Constitution ratified and adopted on 6-10-2018 has no retrospective effect. It should have ended the matter there and dismissed the 1st respondent’s claim. There was no basis for any further considerations upon its holding that exhibit I has no retrospective effect. By this holding, the right to contest the Presidential Primary election acquired under exhibit J and the processes leading to that election carried out under the Constitution in exhibit J remain preserved and valid at all times, irrespective of the fact that the Constitution in exhibit J had ceased to govern the conduct of the 1st appellants affairs, upon the 2018 amended Constitution coming into effect from 8-10-2018. The rights or obligations that had accrued or acts done under a previous legal regime do not cease to be valid or subsist because a new legal regime has replaced the previous one under which they accrued or were done. See S.6(1)(a), (b), (c), (d) and (e) of Interpretation Act. See also MWT Nig. Ltd V PTF (supra), Lakanmi v Adene (supra) and Abaye v Ofili (supra) and Afolabi v Governor of Oyo State (1985) 2 NWLR(Pt 9) 734.
With regards to the offices listed in Article 15.3 (ii)(a) to be rotated between the North and South of Nigeria and amongst the six geopolitical zones, I agree with the submission of Learned SAN for the appellants that the Presidential candidate is not listed therein as one of the offices to be rotated between the said parts of Nigeria. The offices clearly listed therein are President and National Chairman of the party. The 5th appellant is the Presidential candidate of the 1st appellant and not the President of Nigeria. The office of President can only crystallise after the general election. So Article 15.3(ii)(a) of the 2018 amended Constitution cannot apply if the President is not a member of the 1st appellant.
Let me now consider if the trial Court was right in its holding that the undertaking the 1st appellant signed to support whoever emerges winner of the primary election would not bind him and that he is not estopped from complaining about the result of the primary election. The reason the trial Court gave for this holding is that the election of the 5th appellant was in violation of Article 15.3(ii)(a) the 2018 amended Constitution.
I have already held herein that the 5th appellant had a right to contest the presidential primary election and that Article 15.300 (a) of the 2018 amended Constitution was not violated when he was allowed to contest the said primary election. So, the reason the trial Court gave for holding that his said undertaking will not bind him is not valid. The holding is therefore baseless.
Five aspirants contested the said presidential primary election. Four of them including the 5th appellant were from the Southern part of Nigeria. The 1st respondent did not challenge their eligibility to contest the primary election before the holding of the primary election. At the National Convention, the aspirants entered into an agreement to support whoever emerges as the winner of the primary election. In pursuance of this agreement each signed an undertaking to support whoever emerges as the winner of the position they were contesting for.
The undertaking signed by the 1st respondent is exhibit SDP5 which reads thusly- “I PROFESSOR JERRY GANA, hereby undertakes (sic) to support whoever emerges as the winner of the position we are contesting for”. There was no complain about the due process of the primary election. The 1st respondent even accepted the results of the primary election as correct. The 1st respondent has not shown or even alleged any lack of bonafide or impropriety on the part of 1st appellant or 5th appellant in the process of the election. In the light of the foregoing I hold, that he was bound by his undertaking to support whoever emerges the winner of the primary election. He is estopped from challenging the election of the 5th appellant having by his conduct and written undertaking made the 1st appellant, and National Convention of the 1st appellant to proceed to conduct the primary election and caused the 5th appellant and other aspirants to equally issue the same undertakings and proceeded to contest the primary elections. It is unconscionable and inequitable for the 1st respondent to resile from the undertaking after losing the primary election. It is obvious that if he had won the election, he would not have complained about the outcome of the primary election. It is not reasonably open to question that if he had won the primary election and any of the aspirants challenged it, he would have enforced the aspirant’s undertaking to prevent such challenge.
It is noteworthy that the 1st respondent did not challenge the eligibility of the other three aspirants from Southern Nigeria to contest the Presidential primary. So it is obvious that he challenged the eligibility of the 5th appellant to contest the Presidential primary election solely on the ground that he is from the Southern part of Nigeria because he won the said primary election. There was clearly no cause for his suit challenging the election of the 5th appellant. The suit is brought on the basis of the 2018 amended Constitution. But the suit negates Article 10.2 of that same Constitution which gives every party member equal opportunity to vote and be voted for. As I have held herein, there is no provision in the 2011/2012 Constitution (exhibit J) under which the Presidential primary election was held or the 2018 amended Constitution (exhibit I) under which the 1st respondent sued challenging that election, that restricts or abrogates the right enjoyed by the 5th appellant as a member of the 1st appellant to have equal opportunity to vote and be voted for in the party’s elections. Since there is nothing in both the previous and present Constitution excluding persons from any other part of Nigeria from participating in the 6-10-2018 Presidential Primary election or from being the 1st appellant’s Presidential Candidate for 2019 general elections, it would amount to discrimination against the 5th appellant or persons from Southern Nigeria to exclude him or them from participating in the party’s Presidential Primary or from being the party’s Presidential Candidate.
The 1st respondent brought the suit leading to this appeal, to secure the judgment of a Court to grant reliefs that would violate the 5th appellant’s fundamental right to freedom from discrimination guaranteed him by S.42(1)(a), (2) of the 1999 Constitution which provides thusly-
“42(1)(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action, of the government to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, circumstance of birth, sex, religion or political opinions are not made subject; or
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”
So the reliefs claimed for in the suit by the 1st respondent are unconstitutional, illegal and unenforceable.
‘The Presidential Candidate of the 1st appellant is not a member of its executive committee or other governing body of the 1st appellant or an office in any Government in Nigeria. The suit brought by the 1st respondent does not seek to ensure that the membership of the executive committee or other governing body of the 1st appellant reflects the federal character of Nigeria by consisting of members from at least two-thirds of all the States in Nigeria. So Ss.14 and 223 of the 1999 Constitution are irrelevant and inapplicable in this case which clearly does not seek to pursue the principle of those provisions. While those provisions promote equal opportunities of all States in Nigeria or parts of Nigeria to participate in the Governance of the country or each political party, this case seeks to prevent persons from the entire Southern part of the Country from enjoying equal right to aspire to be elected to the office of President of Nigeria for the reason that the National Chairman of their party is from the South. The office of National Chairman is not an office in the Government of Nigeria and the Presidential Candidate of the party is neither an office in the executive committee or other governing body of the party nor an office in any Government in Nigeria.
Our general law, particularly our Constitution prohibits the deprivation of a person’s right to aspire to or be a Candidate in an election on the ground of his or her place of origin or indigenship.
In “Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) Page 117 at 146, the Supreme Court made it clear that the coinage of either “residency” or “indigeneship” has no location or habitation under our Constitution, and same cannot be used against any candidate contesting an election or seeking an elective office. The apex Court enthused thus, per Rhodes-Vivour, JSC:
“The 1st respondent questioned and relied on residency and indigenship of the Appellant to seek her disqualification. Such issues have no place in election matters in Nigeria. They are alien to the Constitution see Section 65(1) of the Constitution.”
In his own judgment, Aka’ahs, JSC, at page 160, posited as follows:
“Having examined the above provisions of the constitution I readily pitched my tent with the defendants that factors of being a resident in or an indigene of a Senatorial District, is not a constitutional requirement for a person to contest as either a member of the Senate or House of Representatives. The only qualifications are as stipulated in Section 65 (1) (Supra) and the disqualifying factors are as contained in Section 66 of the Constitution. In none of these sections is residency or being an indigene in the Senatorial District, made a factor to be considered.”
The 1st respondent in his suit did not make a case that the 5th appellant did not satisfy the requirement in S.131 of the 1999 Constitution that qualifies a person for election to the office of President. Also he did not make a case that 5th appellant was disqualified for election to the office of President by virtue of S.137(1) of the 1999 Constitution.
S.131 states thusly- “A person shall be qualified for election to the office of President if-
a) He is a citizen of Nigeria by birth
b) He has attained the age of forty years
c) He is a member of a political party and is sponsored by that political party and
d) He has been educated up to at least the School Certificate level or its equivalent.”
S.137(1) states that- “A person shall not be qualified for election to the office of President if-
a) Subject to the provisions of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he made a declaration of allegiance to such other country or
b) He has been elected to such office at any two previous election; or
c) Under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
d) He is under a sentence of death imposed by any competent Court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any Court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a Court or tribunal; or
e) Within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence, involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or
f) He is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other county; or
g) Being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or
h) He is a member of any secret society; or
i) (Deleted);
j) He has presented a forged certificate to the Independent National Electoral Commission.”
There is no dispute in this case that the 5th appellant is qualified under the 1999 Constitution for election to the office of President.
The case of the 1st respondent is that the 1st appellant has provided in Article 15.3(ii)(a) of its 2018 amended Constitution that a person cannot participate in the Presidential primary election of the party or be its Presidential candidate if the current National Chairman of the party is from his part of the country. I have already held here that Article 15.3(ii)(a) do not state or suggest such an arrangement. Even if such an arrangement is assumed to be provided for in that Constitution, it amounts to a mere internal political arrangement of the political party to help it win elections, that has nothing to do with the personal qualification of any member of the party to aspire to be its candidate in an election or the qualification of such a person for election to the office of President. Such an arrangement has nothing to do with the due process of the primary election. The due process of the primary election of a political party must conform with the 1999 Constitution and the Electoral Act 2010 as amended.
The 1st respondent admitted that the 5th appellant scored the highest number of votes (812 votes) and that he had 611 votes, coming second after the 5th appellant. The 1st appellant acted in accordance with S.87(4)(a)(ii) of the Electoral Act when it declared the 5th appellant the winner of the said primary election and forwarded his name to the 2nd respondent as its presidential candidate for the 2019 general election. The said S.87 (4) (a)(ii) provides thusly-
“The aspirant with the highest number of votes at the end of voting, shall be declared the winner of the presidential primaries of the political party and the aspirant’s name shall be forwarded to the Independent National Electoral Commission as the candidate of the party”.
The only complain the 1st respondent is permitted by S.87(9) of the Electoral Act to bring to Court against the election of the 5th appellant as the Presidential Candidate of the 1st appellant is a complain that any of the provisions of the Electoral Act and the guidelines of 1st appellant has not been complied with in the selection or nomination of the 5th appellant as its candidate. Also, that is the only complain the trial Court has jurisdiction to entertain. The said S.87(9) of the Electoral Act provides thusly- “Notwithstanding the provisions of this 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.”
In this case, the complain of the 1st respondent is not that any provisions of the Electoral Act or the Presidential Elections guidelines (exhibit SDP5) was not followed in the election of the 5th appellant. His complain is that the 5th appellant being a person from Southern Nigeria, he cannot aspire for election as the Presidential Candidate of the 1st appellant, because its National Chairman is presently from the Southern Part of Nigeria by virtue of Article 15.3(ii)(a) of the 2018 amended Constitution of the 1st respondent. Such a complain does not disclose a cause for action and does not vest a right of action under S.87(9) of the Electoral Act and the trial Court lacks the jurisdiction to entertain such a complain.
‘The 1st respondent who did not score the highest votes cast in the primary election and who had the second highest votes wants to be declared the winner of the Presidential primary election and his name forwarded by the 1st appellant to the 2nd respondent as its Presidential Candidate. This is contrary to S.87(4)(a)(ii) of the Electoral Act 2010. As the Supreme Court held in Ufomba v. INEC (2017) 3 NWLR (Pt 1582) 175 at 208, “the Courts have no power to compel a political party to sponsor a candidate outside the thin and limited powers conferred on them under Section 87 of the Electoral Act 2010, as amended”.
In the light of the foregoing all the issues raised for determination in the appellants’ brief are resolved in favour of the appellants.
On the whole this appeal succeeds as it has merit. It is accordingly allowed. The judgment of the High Court of the Federal Capital Territory delivered on 14/12/2018 in Suit No. FCT/HC/CV/3041/18 by H. B Yusuf J, is hereby set aside. Rather it is hereby adjudged that the claim in Suit No. FCT/HC/CV/3041/18 lacks merit. It is hereby dismissed.
The 1st respondent shall pay costs of N500,000.00 to the appellants.
ADAMU JAURO, J.C.A.: I had a preview of the judgment of my learned brother, Abdu Aboki, JCA. in which he admirably handled the issues raised in this appeal. I am in complete agreement with the reasoning and conclusion contained therein, to the effect that the appeal is meritorious and ought to be allowed.
I adopt the said judgment as mine, and join my brother in allowing the appeal. I abide by all consequential orders made, including that on costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my Learned brother, Lord Justice Abdu Aboki, JCA. I agree completely with the reasoning, conclusions and orders therein.
Each of the aspirants in the presidential primary election of the 1st appellant’s candidate for the 2019 general election freely signed an undertaking to accept the outcome of the presidential primary election and support the winner of the said primary election. If they all abide by the undertaking after the primary election, it is good political practice and value that would help to eliminate or minimise the rancour and litigations that characterise and bedevil political party primaries in Nigeria. Keeping to the terms of such undertaking enhances public confidence in the moral character of the kind of leadership that the aspirant and his political party can give the society. The prevalent habit of, even without good reason or cause, always challenging the outcome of these party primaries is one of the main causes of their irreconcilable disagreements and consequent instability of the parties. This, arguably, accounts for about 75% of election related litigations in Nigeria and put so much pressure on the Courts in many respects, including the very huge budgets for the hearing of pre-election litigations.
The 1st aspirant has resiled from his undertaking to support the winner of the Presidential Primary election and brought this case contending that the 5th appellant, the winner of the primary election should not have participated in that election because he was not eligible to do so being a person from the same part of Nigeria with the 2nd appellant the current National Chairman of the 1st appellant and that his election is invalid. But he knew of this situation when he freely signed the said undertaking. It is not a fact that arose after the undertaking. I do not think that he can wish away that undertaking.
The reason the 1st respondent gave for bringing this case is that Article 15.3 (ii)(a) of the 2018 amended Constitution is violated by the 5th appellant, a person from the same part of Nigeria as the 2nd appellant, the current National Chairman of 1st appellant, contesting to be the Presidential Candidate of the party or being such candidate for the 2019 general elections. But the said primary election was governed by the 2011/2012 Constitution that does not contain such a provision. In any case even the 2018 amended Constitution equally does not contain such a provision. The Article 15.3 (ii)(a) relied on for the suit, only provides for rotation of the office of President of Nigeria and National Chairman of the party between the Northern and Southern parts of the country and the six geopolitical zones. It did not state or suggest that a person from the same part or zone with the National Chairman cannot contest the Presidential primary of the party or be the party’s presidential candidate. Both constitutions recognize the equal right of every member of the party to vote and be voted for in party primary elections.
The practice of political parties engaging in the political arrangement of rotating offices in government between parts of the country or a state, constituency or local government or zoning such offices to a particular part is common. Such an arrangement does not legally disqualify persons from the part to which the office is not zoned to, from aspiring for election to that office. Very frequently party members refuse to be bound by such arrangements and contest the primary elections of their party. The political party deals with such errant political behaviour politically, knowing very well that its said member is legally qualified to aspire for election to that office. The jurisdiction of a Court cannot be invoked to enforce the political party’s political arrangement of zoning or rotation of the holding of offices in government. It is a political issue that is within the internal arrangement of the affairs of a political party. It is therefore non justiciable.
In the light of the foregoing and the more detailed and very sound reasons in the lead judgment, I also allow this appeal, set aside the judgment of the trial Court and dismiss the 1st respondent’s claim in suit No. FCT/HC/CV/3041/18 at the trial Court.
Appearances:
Chief Wale Olanipekun (OFR, SAN, LL.D), Eyitayo Jegede (SAN), Olabode Olanipekun (SAN) with them, Ayo Adesanmi, Esq., Mrs. Temitope Adesina, Esq., Akintola Makinde, Esq., Olajide Salami, Esq. and Gbenga Oshin, Esq.For Appellant(s)
P.A. Akubo (SAN, FCIArb), J.A. Abrahams (SAN), Dr. J.Y. Musa (SAN) with them, M.S. Ibrahim, Esq., Agiwon S. Elukpo, Esq., A.J. Adudu, Esq. for the 1st RespondentFor Respondent(s)
