(2007) LCN/3722(SC)

In the Supreme Court of Nigeria

Friday, June 8, 2007

Case Number:SC. 83/2007























“Where a requirement is mandatory, it must be strictly complied with; failure to comply invalidates everything that follows. Where it is merely directory, it should still be compiled with, and there may be sanctions for disobedience, but failure; to comply does not invalidate what follows.” PER TOBI, JSC


“The verb “verify”, a variant of the adjective “verifiable” means to make certain that a fact or statement or a state of things as stated is correct or true. It also conveys an element of “confirm”. PER TOBI, JSC


“Right of access to court is a constitutional right which is guaranteed in the Constitution and no law, including that of a political party, can subtract from or derogates from it or deny any person of it. Such a law will be declared a nullity by virtue of section 1(3) of the Constitution”. PER TOBI, JSC


 NIKI TOBI, J.S.C. (Delivering the Judgment by the Court): On 5th of April, 2007, I dismissed this appeal and indicated that day that I will give my reasons for the dismissal today. I do so now.  The facts of this case as presented by the Court of Appeal are in some material difference from those presented by Dr. Alex Izinyon, SAN, for the 1st appellant in his brief. The material difference is that Dr. Izinyon has introduced the element of the 1st respondent not winning the primaries. He said that the 1st respondent scored 2,061 votes which was less than the 50% of the total votes of 7,504 cast. Dr. Izinyon would appear not to have remembered that important aspect when he settled the pleadings at pages 345 to 348 of the Record.  There is yet another aspect. Dr. Izinyon, in Part 2 of his brief, contended that the name of the 1st respondent was submitted to the 2nd respondent in error, which error was later corrected. That to learned Senior Advocate, was responsible for the substitution of the 1st respondent for the 1st appellant. What qualified the 1st appellant to benefit from the exercise of substitution, counsel did not include in his narration of facts. All he narrated was that the 1st respondent’s score was 37.5% which was short of the minimum score of 50%.  Although Dr. Izinyon, in the course of narrating the facts, said that the name of the 1st respondent was sent to the 2nd respondent in error, paragraph 4 of the 2nd and 3rd Joint Defendant Statement of Defence averred to the contrary:  “In further answer to paragraphs 11, 13, 14, 16, 17, 18, 19 of the Statement of Claim, the 2nd and 3rd Defendants deny that the plaintiff’s name was submitted to the 1st Defendant and he is put to the strictest proof thereto.”  The above narration conveys some contradictions. I will not say a bundle because the aggregate of the contradictions will not sum to a bundle. The duty of counsel is to present the case of his client and they, at times, do so with some sentiments and emotions. This, court cannot hold such human feelings and idiosyncrasies against counsel. That a counsel should love his client’s case to the level of presenting same with some slant favourable to the client is not a condemnable conduct in so far as there is sincerity in the presentation and not an ambition to overreach the case of the adverse party. Such is the fiduciary professional duty of care counsel owes; his client. I have no cause or reason to doubt the sincerity of Dr. Izinyon in this area of narration of the fact. One may be sincere in the position he takes but he could be mistaken in his sincerity at the same time.  I have taken up this for only one reason and it is to know the exact factual position.

I must say that the 1st respondent took time and pains to narrate the facts of the case from pages 6 to 9 of the brief. I think he did a good job of the facts. Apart from the tradition of appellate courts taking the narration of facts by the lower courts more seriously than those of counsel in the event of conflict, I am inclined to do just that in the light of the situation in this matter.  I should take the narration of facts by the two courts below. The trial Judges narration was brief. I can easily quote the facts here from page 567 of the Record:

“Certain facts are not in dispute in this suit. These are that the Plaintiffs name was submitted to the 1st Defendant vide exhibit F as the 3rd Defendant’s candidate for the Imo State Gubernatorial election 2007. This is dated 14th December, 2006. That on the 18th January, 2007, vide exhibit K the 3rd Defendant sent to the 1st Defendant the name of the 2nd Defendant as its Gubernatorial candidate for the same office. This submission of a second name is the root cause of this action.”

The above is the version of the trial Judge. Let me take the version of the Court of Appeal. It is a bit more comprehensive. Again, I persuade myself to quote the facts from page 670 of the Record: PAGE| 2  “The facts are that the appellant emerged winner at the Governorship primaries conducted by the Peoples Democratic Party for Imo State on the 14th of December 2006. The appellant at the contest scored 2,061 votes as against the 36 votes scored by the 2nd Respondent Engineer Charles Ugwu. The name of the appellant was forwarded to INEC by the 3rd Respondent as the Governorship candidate sponsored by PDP in compliance with the provisions of section 32(1) and (2) of the 2006 Electoral Act, on the 14th of December, 2006 a shown in Exh. F and G. The 3rd Respondent on the 19th of January, 2007 forwarded the name of the 2nd Respondent to the 3rd Respondent under a letter dated 18th January, 2007 Exh. K as the candidate it was sponsoring for Imo State Governorship in April, 2007.”  The learned trial Judge, after taking the interlocutory matter of jurisdiction, threw out the 1st respondent’s case. I did not see the trial Judge dismissing the suit and so I cannot say that although the result at the end is the same thing. I should quote the two last paragraphs of the judgment at pages 573 and 574 of the Record:

“By the provision of Section 34 of the Electoral Act 2006, I find that political party has the power to change its nominated candidate for another any time before 60 days to election. In its exercise of the power to change, it need to inform the INEC in writing not in any prescribed form of the change. It will also give INEC cogent reason for the change which INEC should be able to verify. In the instant case, the 3rd Defendant which submitted the name of the Plaintiff as its Governorship candidate informed INEC of its change of candidate and gave INEC a reason for the change. It is left for INEC to Verify the reason or not. But pursuant to all the above, I will say that the political party is within its powers to so change its candidate and have so done as far as the parties on record are concerned.”

The Court of Appeal did not agree with the learned trial Judge. That court overturned the judgment of the learned trial Judge and allowed the appeal. At page 887 of the Record, Adekeye, JCA, said:

“Moreover that pronouncement is not a judicial or judicious exercise of the discretion of the lower court in the circumstances of the case. I shall not hesitate to conclude that the learned trial Judge failed to consider all the aspects of section 34(1) and (2) of the Electoral Act and same has not met the justice of this case. I hereby allow the appeal. Judgment of the lower court is hereby set aside. No order as to costs.”

The court dismissed the cross-appeal.  Dissatisfied, the appellants have come to this court. Briefs were filed and exchanged. The 1st appellant formulated four issues for determination:

 “1. Whether the deasions of this Honourable Court in Onuoha v. Okafor (1983) 1 NSCC 484 and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 on issues of nomination and sponsorship of candidate by political party have been overtaken by the provisions of Section 34(1)(2) of the Electoral Act, 2006.

2. Whether the learned Justices of the Court of Appeal were right in holding that Section 34 of the Electoral Act, 2006 is justiciable.

3. Whether the learned Justices of the Court of Appeal were right in their interpretation of Section 34(1) (2) of the Electoral Act, 2006.

4. Whether the learned Justices of the Court below were right in holding that Exhibits K, L, and L1 had no probative value having regard to the admission by consent of the said Exhibits by parties at the stage of the proceeding.”

The 2nd appellant formulated the following issues for determination:

“(a) Whether the Court of Appeal was right when it held that the action before the trial Court being one of sponsorship and nomination of a candidate by a political party was justiciable, i.e. has section 34(1)(2) however interpreted taken the issue of nomination and sponsorship of a candidate outside the Supreme Court decision in:  (a) P.C. Onuoha v. R.B.K. Okafor, 1983, SNLR pg 244.”

(b) Dalhatu v. Turaki, 2003 15 NWLR pt 843 Pg. 300  (b) Whether the Court below was right or not in holding that exhibits L, L1 & K had no probative value, when the pieces of evidence above were admitted by consent of parties.

(c) Whether the Court of Appeal as constituted by a three man panel instead of Justices, had jurisdiction to hear and determine the matter before it having regard to fundamental constitutional and salient legal issues raised in the Appeal.  The 1st respondent formulated the following issues for determination:

 “(1) Whether, having regard to all relevant laws, documentary evidence before the Court and the complaint in the ground of appeal, it can be said that, the Court below was wrong in reaching a conclusion that, there was non compliance with section 34(2) of the Electoral Act 2000 in the purported substitution of the name of the Plaintiff with that of the Respondent

(2) Whether steps taken in breach of a Court order and in purporting to substitute the name of the Plaintiff are not null and void?

(3) Whether the Plaintiff’s case is justiciable.”

Learned counsel for the 1st appellant, Dr. Izinyon, SAN, submitted on Issue No. 1 that the Court of Appeal Was: wrong to have held that it was not a domestic affair of the 3rd respondent having scaled a purported nomination and sponsorship and that section 34(1) and (2) of the Electoral Act, 2006 has now become the modern deux ex machina. He cited Onuoha v. Okafor (1933) 14 NSCC 494 and Dalhatu v. Turaki (2003) 14 NWLR (Pt. 843) 310. He dealt with the decisions in the cases at pages 11 to 13 of the brief. He also applied the principles of the two cases at pages 13 to 14 thereof. He argued that section 34(1) can only become applicable and not a domestic affair of the party when the time allowed has elapsed.  On Issue No. 2, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that section 34 is justiciable. He contended that the section does not confer any right of action on any person and therefore not justiciable. The only legal right of a candidate is to sue his political party for breach of its Constitution and nothing else.  On issue No.3, learned Senior Advocate submitted that the Court of Appeal was wrong in the interpretation of section 34. He contended that the Court of Appeal introduced many extraneous considerations into the statute. Counsel itemized them at pages 26 to 27 of the brief. In construing section 34, learned Senior Advocate invoked the Mischief Rule and submitted that recourse to the rule can only be applicable where the mischief sought to be removed has actually been removed.

The Legislature rather than remedying the antecedents left section 34(1) and (2) as a banana peel that is slippery and slimy, counsel contended. On the rules of interpretation, learned Senior Advocate cited Ogbonna v. Attorney-General of Imo State: (1992) 1 (Pt. 531) 263, Ibrahim v. Mohammed (2003) FWLR (Pt 156) 902 at 923; NBN Ltd, v. Weide Co. (Nig) Ltd. (1996) 8 NWLR (Pt. 465) 150 at 165; Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1: Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (Pt 901) 44 at 60-61; Udo v. OHMB (1993) 7 NWLR (Pt. 304) 139. Relying on Exhibits E, F, K, L and L1, learned counsel submitted that the exhibits satisfied the requirements of section 34(2) of the Electoral Act. He said that it is not the duty of the court to audit the reason for the change and whether it has been verified or not as the party who has made the substitution within the time provided by law is exercising its lawful right unfettered. He cited Onuoha v. Okafor (supra); Dalhatu v. Turaki; (supra): Aqwuna v. Attorney-General of Federation (1995) 5 NWLR (Pt. 396) 441 at 435; Araka v. Egbue (2003) 17 NWLR (Pt. 344) 1 at 2; Ikpenowor v. Okojunga (2001) FLWR (Pt. 62) 960 at 1968-1967; LSDPC v. Adeyemi-Bero (2005) 8 NWLR (Pt. 927) 330 at 357 to 358. Citing Green v. Green (1987) 2 NSCC 1115 at 1143; INEC v. Musa (2002) 17 NWLR (Pt. 786) 417; Sodipo v. Leminikainen (1986) 1 NWLR (Pt. 15) 220 at 238; Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 386) 136 at 152: Adeniji v. Adeniji (1372) 7 NSCC 187; Hauma v. Akpe-Ime (2000) 12 NWLR (Pt. 680) 156; Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22.  Still on section 34(1) and (2), learned Senior Advocate submitted that the section is not mandatory, as there is no procedure for compliance and sanction for non-compliance. By way of analogy, learned Senior Advocate called the attention of the court to section 21(8) of the repealed Electoral Act, 2002. He cited Crates on Legislation at page 463 Amokeodo v. IGP (1999) 3 NWLR (Pt. 607) 467 at 400-481; Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179 at 190; Pan Bisbilde Ltd, v. First Bank (2000)1 FWLR (Pt. 2) 177 at 188; Rimi v. INEC (2005) 6 NWLR (Pt. 920) 56 at 80 on the directory nature of section 34.

On issue No. 4, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that Exhibits K, L and L1 had no probative value. He specifically submitted that Exhibit K made on 8th January, 2007 in a suit instituted on 17th January 2007 only against INEC was not made during the pendency of the suit nor made in disobedience of an interim order. He also argued that Exhibits L and L1 did not contravene section 91(3) of the Evidence Act and therefore admissible. As the documents were admitted by consent, they are admissible, counsel contended. He cited. Shittu v. Fashawe (2005) 10-11 SCM 330 (2005) 14 NWLR (Pt. 946) 671 at 690; Olukade v. Alade (1976) 1 All NLR 67; Ibori v. Agbi (2004) 6 NWLR (Pt. 568)78; Aiyebosi v. R.T. Briscoe Nig. Ltd. (1987) 6 SCNJ 9.  Taking the issue of ex parte order of interim injunction Advocate pointed out that at the time the court granted the interim order on 19th January 2007, the 1st appellant and the 3rd respondent were not parties as they only became parties on 8th February 2007. He relied on Kotoye v. CBN (1989) 2 SCNJ 31, 7Up Bottling Co. Ltd v Abiola and Sons Ltd. (1985) 3 NWLR (PL 333) 257 and 276; Okeke v. Okoli (2000) 1 NWLR (Pt. 642) 641 at 655. Assuming without conceding that the 1st appellant and 3rd respondent were aware of the interim order, they applied timeously for a discharge of the ex parte order of 19th January, 2007. To learned Senior Advocate, there was therefore no longer alive an interim order to be disobeyed. He cited Chief Land Officer v. Alor (1991). 4 NWLR (Pt. 187) 617; SAP (Nig) v. CBN (2004) 15 NWLR (Pt. 897) 605 at 680-689; Ariori v. Elemo (1983) NSCC 1 at 8: Ogunlayi v. Attorney-General of Rivers State (1997) 6 NWLR (Pt. 508) 201; Counsel urged the court to examine the content of Exhibits L and L1 and come to the conclusion that the exhibits satisfied the requirement of section 34(1) and (2) of the Act. He urged the court to hold that the name of the 1st/respondent was submitted by error in Exhibit F. He invited the court to do the (arithmetical calculation as the documents are before it, documents which were tendered by the 1st respondent and therefore qualify as admission against interest. Learned Senior Advocate urged the court to allow the appeal.

Learned Senior Advocate for the 2nd appellant/3rd respondent, Chief Joe-Kyari Gadzama on Issue No.1, referred to section 34(1) and (2) of this Electoral Act, 2006 and section 23 of the repealed Electoral Act, 2002 and submitted that the bottom line of the matter is that political parties have the freedom to substitute any candidate who has been nominated 80 days before the election while giving reasons for same. He said that the basis for the inclusion of the phrase “cogent, and verifiable” perhaps, may, have been to curb the arbitrariness of political parties in the act of substitution. While so conceding, he contended that the reason for the insertion of the phrase is not to remove the freedom and rights of political parties to substitute candidates and vest same in the courts or the Independent National Electoral Commission, but rather to entrust in the INEC the duty of ensuring that what the party substituting considers as cogent is satisfactory.  He pointed out that section 34(2) of the Act did not specify any criterion for ascertaining whether reason(s) adduced by political parties are cogent or not; and that there is no yardstick for the implementation of the said section because there is no sanction for non-compliance. He also pointed out that there is no specification for redress for a candidate who has been substituted and who claims that his right has been violated. Counsel relied on the mischief rule of interpretation. He cited Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; SPDC v. Isaiah (1997) 6 NWLR (Pt. 505) 236 and Omoliahe v. Umoru (1999) 8 NWLR (Pt. 614) 178 at 188.  Learned Senior Advocate submitted that the intention of the law-makers is to ensure that the business of substitution of candidates should be left in the hands of political parties and that it is the business of the court to hold that a reason given by a political party is not cogent. To learned Senior Advocate, if the courts do so, it will amount to judicial law making; He cited Attorney-General of Anambra State v. Attorney-General of the Federation (2005) 5 SCM 1; (2005) 18 NWLR (Pt. 353) 601. Citing Onuoha v. Okafor (supra); learned Senior Advocate submitted that section 34 has not taken away the issue of sponsorship and nomination of candidates from political parties.

Taking Issue No. 2, learned Senior Advocate submitted that parties are bound by their admissions. He therefore contended that as Exhibits K, L and L1 were admitted by consent of the parties they are bound by them. Learned Senior Advocate argued that at the time Exhibits L and L1 were made, there was no evidence before the court that they were made in contemplation of a suit. Consequently, section 91 of the Evidence Act does not apply, counsel submitted. He said that the exhibits were not caught by the doctrine of lis pend’s and there was no disobedience of court order.  On Issue No.3, learned Senior Advocate argued that five justices instead of three ought to have sat on the appeal before the Court of Appeal. Although he did not give the reason why the panel should have been so constituted, he cited Sken Consult v. Ukey (1981) 1 SC 1 at 17 and Attorney-General of Lagos State v. Hon. Justice Dosunmu (1989) 2 NWLR (Pt. 111) 552 at 556 and 557. He urged the court to allow the appeal.  Learned Senior Advocate for the 1st respondent, Prince L.O. Fagbemi raised a preliminary objection in respect of grounds 4, 8, 9, 10, 11, 13 and 14 on the ground that being grounds of fact or mixed law and fact, leave of court was necessary. As that leave was not sought, the grounds are incompetent and should be struck out. He cited Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503.

Taking Issues Nos. 1 and 2 together learned Senior Advocate examined the tenor of section 34 of the Act and submitted that under the canon of interpretation of statute, words of a statute are to be given their natural or ordinary meaning; hence where a word of a statute admits of no ambiguity, literal or natural meaning should be given and preferred. He cited Adah v. NYSC (2001) 4 SCM 28; (2001) 1 NWLR (Pt. 693) 65 at 79-80.  While conceding that in a literal construction of section 34 of the Act, it is beyond doubt that a political party has the right to change any of the candidates at least 60 days to the election, he argued that where the time to substitute has lapsed, a political party cannot as a matter of course or for the fun of it substitute or replace a candidate whose name had earlier on been submitted and who has by virtue acquired a vested right/interest except in case of death. He examined in admirable detail the provision of section 34 from pages 17-24 of his brief. He cited Ezekwesili v. Onwuagbu (1998) 3 NWLR (Pt. 541) 217 at 237; Ojukwu v. Obasanjo (2004) 12 NWLR (Pt. 888) 169, Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 702: Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 388 at 681; Co-operative and Commerce Bank Nigeria Ltd. v. Attorney General of Anambra State (1992) 8 NWLR (Pt. 261) at 555; Kamba v. Bawa [2005] 4 NWLR (Pt. 914) 43 at 74-75: UNTHBM v. Nnoye (1994) 8 MVVLR (Pt. 363) 406; Nigerian Ports Plc v. Osinuga (2001) 7 NWLR (Pt. 712) 412 at 430 and Ejileme v. Okpara (1998) 9 NWLR:(Pt. 567) 587 at 619.  He dealt with the importance of history of legislation, particularly section 34(2) of the Act from pages 23 to 33 of the brief. He cited in support of his arguments, Halsbury’s Law of England. 4th edition, Re Issue Vol. 44(1): Maxwell on the interpretation of Statutes, page 119; Ugu v. Tabi (1997) 7 NWLR (Pt. 518) 368 at 380; CCB (Nig) Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556; Pan Bisbilder NigV Ltd, v. FBN Ltd. (2000) 1 NWLR (Pt. 642) 684 at 693: Ifezu v. Mbadugha (1984) NSCC 314 and Adefuiu v. OkuSeja (1996) 9 NWLR (Pt. 475) 668 at 693.

Examining the effect of Exhibits F, K, L, and M, learned Senior Advocate submitted that the Court of Appeal was correct in not giving probative value to them for two reasons, viz:

(1) They were made in disobedience of a court order and

(2) they were made in anticipation of the litigation thus violating section 91(3) of the Evidence Act. He dealt with Exhibit L in greater detail and made this submission at page 38 of the brief:

“Since all concerned know the consequences of writing or taking action to prejudice a pending case, the consequences of writing Exhibit L and L1 should be visited on the 2nd and 3rd Defendants. The consequences of Exhibits F, K, L and M can be upheld and that Exhibit F remains the only document by which Exhibit K has been judged. Since Exhibit K has been unhelpful, Exhibit L cannot be put to any beneficial use in favour of the 2nd and 3rd Defendants in view of the foregoing submission. Thus Exhibit L, having been made to overreach the case before the court should be declared void.”

He cited Kankia v. Maipemu (2003) 6 NWLR (Pt. 817) 439 at 517 to 518 . On whether the name of 1st respondent has been lawfully removed or substituted, learned Senior Advocate submitted that the name was wrongly submitted in violation of section 34(2) of the Electoral Act; a provision which is mandatory and must be compiled with. He contended that with the acceptance and publication of the name of the 3rd respondent as the sponsored candidate of the 3rd respondent, he became vested with a right under the Election Act and that right or interest can only be taken away in accordance with the provision of section 34(2) of the Act, as it relates to change of name of a candidate. He cited Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 216 and Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734.  Learned Senior Advocate urged the court to ignore Exhibits K and L because they did not meet the requirements of section 34(2). He submitted in particular that as Exhibit K did not say that it was changing, substituting or replacing the earlier candidates submitted vide Exhibit F, it is a worthless document.

On Exhibit L, learned Senior Advocate submitted that although it said that the 1st respondent’s name was submitted in error, the nature of the error was not stated. He referred to the finding of the learned trial Judge to the effect that Exhibit K was silent as “to what it is” and argued that the finding, not being challenged, is deemed admitted. He cited Okonkwo v. INEC (2004) 1 NWLR (Pt. 854) 242 at 282; Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298. He also urged the court not to give probative, value to Exhibits L and L1 because they were made during the pendency of the proceedings in which the 3rd respondent was involved.  On the disobedience of the interim order, learned Senior Advocate submitted that as Exhibits E1 and L1, were made and forwarded to INEC during the pendency of the life span of the order, at least before 15th February 2007, any steps taken before effluxion of time as to the life-span of the court order remains incompetent. Counsel urged the court to hold that Exhibits L and L1 have no probative value, having been made during the subsistence of a court order.  On Issue No. 3, learned Senior Advocate submitted that the case is justiciable as the court has jurisdiction to hear it. He argued that as the decision of Onuoha v. Okafor (supra) was predicated on the repealed Electoral Act, the decision is no longer apposite in the present dispensation and it will be wrong to continue to rely on such a case. Judicial authorities must only be cited if the facts are similar, learned Senior Advocate contended. But counsel in the early parts of his brief invited us to overrule Onuoha. I do not know how he can reconcile the two submissions, particularly in the light of his reference to Adegoke Motors Nig. Ltdv. Adesanya (1989) 3 NWLR (Pt.109) 250 at 295 and 266.

Learned Senior Advocate submitted that the 3rd respondent is bound by its Constitution and guidelines in particular Exhibit A and B. He cited sections 221 and 222 of the Constitution which provide for political parties to make their Constitutions and Regulations. Citing paragraph 5 of the Amended Statement of Claim and paragraph 1(i), (ii) and (iii) for the appellant’s reply to the Statement of Defence of the 2nd defendant, he submitted that none of the parties denied the fact that primaries which saw the emergence of 1st respondent were conducted under and in compliance with the Constitution and Electoral Guidelines of the party, Exhibits A and B. While conceding that the 3rd respondent can substitute or change a candidate it is sponsoring by virtue of Article 51 of that Electoral Guidelines, such a substitution or change should now comply with section 34(2) of the Electoral Act.  On the submission of learned counsel for the 1st appellant that the 1st respondent did not win 50% of the votes at the primaries as provided for under the 3rd respondent’s Constitution and Guidelines, learned Senior Advocate urged the court to discountenance that submission on the ground that it is incompetent. He argued that the issue of wining primaries or not is an issue coming up for the first time in this court and 1st appellant ought to have obtained the leave of this court to raise the fresh issue. He cited Adio v. State (1986) 2 NWLR (Pt. 24) 581; Orogan v. State (1988) 5 NWLR (Pt. 44) 688. He urged the court to dismiss the appeal.  Learned Senior Advocate for the 1st respondent in his brief to the 2nd appellant/3rd respondent (Peoples Democratic Party) adopted the brief to or in respect of the 1st appellant, Engineer Charles Ugwu. He submitted in addition that the argument of the 2nd appellant/3rd respondent on the composition of the panel of justices does not arise as no interpretation of any part of the Constitution of the Federal Republic of Nigeria, 1999 was in issue in the Court of Appeal and none was decided. I do not intend to take his arguments on this issue further as learned Senior Advocate for the 2nd appellant/3rd respondent rightly withdrew the issue.

Dr. Izinyon, SAN, for 1st appellant, in his reply brief submitted that the hullabaloo in the case by the 1st respondent to overrule this courts decision in Onuoha v. Okafor (supra) is grossly misconceived in law and a nor sequitur. He gave ten reasons in the reply brief why the decision should not be overruled.  Although it is elementary law a reply brief only replies to law, the 1st appellant in paragraph 2.0, 2.1 and 2.2 replied to facts, contending that there is nowhere in all the facts where 1st respondent claimed he won the primaries by scoring 30% of the total votes cast Exhibit E. He cited Exhibit B.  On whether the claim of the 1st respondent was essentially declaratory, learned Senior Advocate submitted that the claim was not only declaratory but consists of a positive relief of injunction in paragraph 8. He contended that the argument of learned Senior Advocate for the 1st respondent that where a statute provided for a particular mode of doing a thing no other method must adopted is not applicable to the case on appeal. If the lawmaker intended a sanction to be imposed for non-compliance it would so say expressly. On the purpose and essence of section 34 of the Act. Learned Senior Advocate referred to Issues Nos. 2 and 3 arising from grounds 1, 2, 3, 5, 6, 7, 8, 10 and 12.  Learned Senior Advocate submitted that the 1st respondent did not properly invoke the mischief rule. He gave four reasons for his submission at page 5 of the reply brief. He examined the cases of Pan Bisbilder Ltd., v. First Bank (2000) FWLR (Pt. 2) 177-188 and Ifezue v. Mbadugha (1984) NSCC 14.

He urged the court once again to allow the appeal.  Let me quickly deal with the preliminary issues raised by Prince Fagbemi and Chief Gadzama, learned Senior Advocates. They are two. The one raised by Prince Fagbemi was on grounds of appeal involving mixed law and facts which needed leave of court and that leave was not obtained. The second one by Chief Gadzama was that the panel of the Court of Appeal was not properly constituted. Both counsel applied to withdraw their objections. That is good judgment for which I commend them. The objections are therefore struck out.  The fulcrum or crux of this appeal is the interpretation of section 34 of the Electoral Act 2006, specifically section 34(2). Let me read the whole section for completeness.

“(1) A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the election.  (2) Any application made pursuant to subsection (1) of this Section shall give cogent and verifiable reasons.  (3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this Section.”  The underlying principle in the interpretation of a statute is that the meaning of the statute or legislation must be collected from the plain and unambiguous expressions or words used therein rather than from any notions which may be entertained as to what is just and expedient. See Adejumo v. Kassim (1958) 3 FSC 51; Lawal v. G.B. Olivant (1972) SC 124. The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the statute as a whole. See Onashile v. Idowu (1961) 1 All NLR 313. This is because it is the duty of the Judge to construe the words of a statute and give those words their appropriate meaning and effect. See Adejumo v. The Military Governor of Lagos State (1972) SC 124. It is certainly not the duty of a Judge to interprete a statute to avoid consequences. See Aya v. Henshaw (1972) 5 SC 87. The consequences of a statute are those of the Legislature; not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside his domain of statutory interpretation. He has by that conduct engaged himself in morality which may be against the tenor of the statute and therefore not within his judicial power.  It is only when the literal meaning resul


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