HON. IFEDAYO SUNDAY ABEGUNDE v. THE ONDO STATE HOUSE OF ASSEMBLY & ORS (2014)

HON. IFEDAYO SUNDAY ABEGUNDE v. THE ONDO STATE HOUSE OF ASSEMBLY & ORS

(2014)LCN/7449(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of September, 2014

CA/AK/110/2012

RATIO

APPEAL: GROUNDS OF APPEAL; WHEN ARE GROUNDS OF APPEAL DEEMED ABANDONED
It is trite that grounds of appeal, with no issue formulated therefrom, are deemed as abandoned. SCC: ALHAJI ABUDU W. AKIBU & ORS V. ALHAJI MUNIRAT ODUNTAN & ORS (2000) 7 SCNJ 189 and SPARKLING BREWERIES LTD & ANOR V. UNION BANK LTD (2001) 7 SCNJ 321 and CPC V. INEC & ORS (2011) LPELR – 8257 (SC).

STATUTORY INTERPRETATION: INTERPRETING THE WORDS OF THE STATUTE; WHETHER A COURT HAS NO POWER TO IMPORT INTO THE MEANING OF THE WORDS OF A STATUTE

In IMAH V. OKOGBE (1993) 9 NWLR (PT.316) 159 at 173 PARA C-D, the Supreme Court re-emphasized the law when it succinctly puts thus:
“Plain words must be given their plain meanings. See ABIOYE V. YAKUBU (1991) 5 NWLR (PT.190) 130. A court has no power to import into the meaning of a word something not in it. See BELLO v. ATTORNEY GENERAL-OYO STATE (1985) 5 NWLR (PT.45) 828″
See also AWOLOWO V. SHAGARI (1979) 6-9 SC 37, wherein the Supreme Court summarized the role of a Judge. In the same case the Supreme Court re-established the position of the law when it puts it thus:
“It is also relevant, we think, to point out that anybody called upon to interpret any kind of statute should not, for any reason, attach to its statutory provision, a meaning which the words of the statute cannot reasonably bear.”
That although, no express mention of ward, local government or State officer in Section 222(a), (e) and (f) of the 1999 Constitution, nonetheless it is not prohibited as far as the administrative and operational structure of the political parties are concerned. The legal ‘status of a political party entails its recognition as a whole structure and not in piecemeal. According to counsel, it will be legally inapt and unfounded to exclude them based on the Supreme Court decision in A.G. ONDO STATE V. A.G. EKITI (2001) 17 NWLR (PT.743) 706 at 770 PARAS A, wherein the court held, per Karibi Whyte, JSC:
“It is important to bear in mind the elementary and fundamental principle of law that what has not been prohibited is allowed.”

STATUTORY INTERPRETATION; THE GUIDELINES TO BE OBSERVED IN THE INTERPRETATION OF STATUTES MOST ESPECIALLY THE CONSTITUTION
The guidelines to be observed in the interpretation of statutes, most especially our Constitution are stated by Obaseki, JSC, in the case of A.G OF BENDEL STATE V. A.G. OF THE FEDERATION AND ORS (1981) 10 SC 1 AT 132, 134 (1982) 3 NCLR 1 AT 77 as follows: –
“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind: –
(1) Effect should be given to every word.
(2) A construction nullifying a specific clause will not be given to the constitution unless absolutely required by the context.
(3) A constitutional power cannot be used by way of condition to attain constitutional result.
(4) The language of the constitution where clear and unambiguous must be given its plain evident meaning.
(5) The constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety: a particular provision cannot be dissevered from the rest of the constitution.
(6) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller-import to its meaning.
(7) A constitutional provision should not be construed so as to defeat its evident purpose.
(8) Under the Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
(9) Delegation by the National Assembly of its essential legislative function is precluded by the constitution (Section 58(4) and section 4(1).
(10) Words are the common signs that mankind make use of to declare their intentions plainly, there is no need to have recourse to other means of interpretation of such words.
(11) The principles upon which the constitution was established rather than the direct operation or lateral meaning of the words used should measure the purpose and scope of its provisions.
(12) Words of the Constitution are therefore, not to be read with stultifying narrowness.
See: MARTIN V. HUNTER 1 WHEAT 304, 4L, ED, 97; COOPER V. TELFAIR 4 DAL 14. IL ED. 721; UNITED STATES V. LELKOWITZ 285, US 452, 52 SC 420, 761 L. ED.877; UNITED STATES VS. CLASSIC 213, US 299, 61 SCT 1031, 85 L. ED. 1368; LAKE COUNTY V. ROLLINGS 130 US 662 95, CI 651; FAIRBANK V. UNITED STATES 181 US 283, 21 S. CT, 648, 45L. ED. 862, UNITED STATES V. SHARPNACK 355 US 286, 783, CT 291; WESTERN BANK LTD. V. SCHINDLER (1977) 1 CH 1 AT 13; LUKE V. INLAND REVENUE COMMISSIONERS (1963) AC 577 AT 577 (SIC); IN RE MARYON WILLIAM’S WILL TRUSTS (1968) CH 268, 262.

Courts, it must be emphasized cannot amend the Constitution. They must accept the words, and so far as they introduce change, it can come only through their interpretation of the meaning of the words which change with the passage of time and age.”
In the case of I.M.B. v. TINUBU (2001) 45 WRN 1 AT 19; (2001) 16 NWLR (PT.740) AT 690; Iguh, JSC, on interpretation of the provisions of the Constitution stated the position thus: –
“In this regard, it will be necessary to recall the general principle of law governing the interpretation of our constitution. This is that such interpretation as would serve the interest of the constitution and best carry out its object and purpose should be preferred.
Its relevant provisions must be read together and not disjointly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning, unless this would lead to absurdity or be in conflict with other provisions of the constitution See: CHIEF D.O. IFEZUE V. LIVINUS MBADUGHA & ANOR (1984) 1 SCNLR 427, (1984) 5 SC 79 AT 101.”
See also NAFIU RABIU v. STATE (2005) 5 WRN 54, (2005) 7 NWLR (PT.925) 491; (1980) 5 -11 SC 130 AT 149 A.G. KADUNA V. HASSAN (1985) NWLR (PT.8) 483, (1985) LPELR-617 (SC); ELELU HABEEB & ANOR V. A.G FEDERATION & 2 ORS (2012) 2 SC (PT 1) 145 AT 164, on the subject of constitutional interpretation.

STATUTORY INTERPRETATION; PROVISO; THE PURPORT OF A PROVISO

In NDIC v. O’SILVAWAX INT’L (2006) 7 NWLR (pt.980) 588 at 611, this court, per Adekeye, JCA (as she then was) held thus:
“A proviso in a provision of a law is a clause of exception or qualification and it speak the last intention of a legislature on a statute. A section of an Act that contains a proviso must be read as a whole, each part throwing light on the other.”
See also UNIVERSAL TRUST BANK OF NIGERIA LTD v. UKPABIA (2001) FWLR (PT.51) 1889 AT 1899 PARA G and NIPOST V. ADEPOJU (2003) 5 NWLR (PT.813) 224 AT 242 PARAS A-B.
The purport of a proviso whenever same is inserted in any provision is to create an exception and derogation from the intendment of the statutory provision. Since section 68(1)(g) of the Constitution contains a proviso, where circumstances envisaged in the said proviso arise, the absolute provision of Section 68(1)(g) might not operate.

APPEAL: FINDINGS NOT APPEALED AGAINST; WHETHER FINDINGS NOT APPEALED AGAINST SHALL BE DEEMED ADMITTED AND UNDISPUTED

The law is now clearly settled that, where a trial court makes a specific finding on fact and such finding of facts is not appealed against by any of the parties, such finding of fact shall be deemed admitted and undisputed. See DABUP V. KOLO (1993) 9 NWLR (PT.317) 269; ZAKARI V. ALHASSAN (2002) 14 NWLR (PT.798) 52 AT 73; OLANREWAJU V. THE GOVERNOR OF OYO STATE & ORS (1992) 11-12 SCNJ 92 and C.C.C.T.C.S LTD. V. EKPO (2008) 6 NWLR (PT. 1083) 362 AT 388 PARAS E-F.

MEANING OF WORDS: THE WORD ‘POLITICAL PARTY’ THE DEFINITION OF POLITICAL PARTY ACCORDING TO THE CONSTITUTION AND THE ELECTORAL ACT AND THE CONDITIONS FOR A POLITICAL PARTY TO FUNCTION
The word ‘Political Party’ has been defined under Section 229 of the 1999 Constitution to mean “any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor, or membership of a legislative house or a local government council”. The Electoral Act, 2010 as amended also defined ‘Political Party’ under Section 156 to include any association of persons whose activities includes canvassing for votes in support of a candidate for election under this Act and registered by the commission. For a political party to function, the name and address of the national officers must be registered with Independent National Electoral Commission. Section 222 of the Constitution set out the conditions upon which an association can function as a political party. Section 222 is therefore about conditions for eligibility of an association to engage in the activities that by virtue of Section 221 only political parties can engage in as specified in Section 229.
There is one political party recognized by the Electoral Act and by implication the Constitution. A political party is registered as one corporate entity and recognized by the Electoral Act and the Constitution. The 4th, 9th and 13th Respondents’ counsel had contended that it is deducible from the definition of political party that the organization which the Constitution reckons with as a political party is the association registered with the Independent National Electoral Commission. According to counsel, divisions that do not affect the whole structure of the party would not qualify as an exception under Section 68(1)(g) of the Constitution. I agree with the submission of both learned counsel for the 4th, 9th and 13th Respondents, as well as the learned Attorney-General that Section 68(1)(g) contemplates division that will inflict the party at the centre and not division at State or Local Government level. A community leading of Sections 221, 222, 229 of the Constitution as well as Section 80 of the Electoral Act, clearly shows that, the division envisaged by Section 68(1)(g) of the Constitution refers to division in the party at the top or centre not division at the State or Local Government level as contended by the appellant. For ease of reference the sections referred to Supra are reproduced thus: “I have earlier reproduced Section 222(a)(e) and (f). Section 221 read thus:
‘No association other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election. Section 80 of the Electoral Act 2010 also provides: ‘A Political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name”. Since a political party is recognized as one corporate entity, division must be one that affects the entire structure of the political party at the centre, i.e., the national leadership of the party. A political party has to be looked at as a whole and not in piecemeal. The intention of the lawmakers is to punish defectors. If the provision of Section 68(1)(g) of the Constitution is interpreted as proffered by the appellant then the purpose for which the Section was introduced would be defeated. There will be no end to defection by members.

STATUTORY INTERPRETATION: SECTION 68(1)(g) OF THE CONSTITUTION; HOW TO CONSTRUE THE PROVISION OF SECTION 68(1)(g)
As earlier noted in construing the provision of Section 68(1)(g) one has to adopt the interpretation that would not defeat the intention of lawmakers. See UZOUKWU V. EZEONU II (1991) 6 NWLR (PT.200) 708 AT 763 PARAS B-C wherein His Lordship Nasir, PCA, stated thus:
“By its very nature a Constitution must always be construed in such a way that it protects what it sets out to protect or guides what it sets out to guide. A Constitution therefore must by necessity be interpreted broadly in order not to defeat the, clear intention of its framers.”
The case of FEDERAL ELECTORAL COMMISSION V. GONI (1983) LPELR – 1266 is a classical example of the type of division envisaged by Section 68(1)(g) of the 1999 Constitution. In that case, His Lordship, Aniagolu, JSC who wrote the lead judgment adopted the background facts summarized by the Federal Court of Appeal in his Judgment as follows: –
“1. Alhaji Mohammed Goni (hereinafter called the 1st Respondent) was elected as the Governor of Borno State in the 1979 general elections on the platform of the Great Nigeria Peoples Party (hereinafter called the G.N.P.P).
2. The 1st Respondent became a member of the Unity Party of Nigeria (hereinafter called the U.P.N) before the expiration of his term of office as Governor.
3. Following disagreement within the G.N.P.P, the Party split into two factions, the one led by Alhaji Waziri Ibrahim and which was subsequently recognized by the Federal Electoral Commission, the appellant (hereinafter called FEDECO) and the other led by Dr. Shettima Mustapha, the faction to which the 1st Respondent belonged.
4. The Shettima Mustapha faction does not recognize the national officers and governing body of the G.N.P.P as registered with FEDECO and has appointed its own national officers and governing body.
5. The Shettima Mustapha faction held separate meetings but subsequently broke into two further groups or factions. One group or faction, of which the 1s respondent was a prominent member, was in favour 1st merging with the U.P.N. The .other group, headed by Shettima Mustapha subsequently merged with the Nigerian Peoples Party (hereinafter called the N.P.P).
6. The members of the pro U.P.N group of the Shettima faction joined up with the U.P.N en masse. And so it was that original Great Nigeria Peoples Party (hereinafter called G.N.P.P.) broke up into factions, namely: –
(i). The Ibrahim Waziri faction and (ii) Shettima Mustapha faction. Governor Goni was a member of the Mustapha faction, later the Dr. Shettima Mustapha faction broke into a further two namely: –
(a) The Governor Goni sub-faction.
(b) The Dr, Mustapha Sub-faction.
It would therefore be right to say that the original G.N.P.P had fragmented itself into the original two factions and later into four by the further sub-division of one faction into two sub-factions.
It was a process of disintegration of the original G.N.P.P, first by a bifurcation and later by a quarternity.”
The main issue for determination before the Federal Court of Appeal from which this appeal emanated was whether or not FEDECO was right in holding that the 1st Respondent was rightly disqualified from contesting for the office of Governor of Borno State on the platform of the U.P.N by reason of Section 166 of the 1979 Constitution read together with Section 64(1)(g). The Federal Court of Appeal in its judgment held that there was division in the G.N.P.P which resulted in Governor Goni joining the U.P.N, as such, he was covered by the proviso to paragraph (g) of Section 64(1) of the 1979 Constitution. I wish to note that Section 64(1)(g) of the 1979 Constitution is in pari materia with Section 68(1)(g) of the 1999 Constitution under consideration. Agreeing with the decision arrived at by the Federal Court of Appeal, His Lordship had this to say:-
“I would agree with the conclusion of the Federal Court of Appeal, that, in the ultimate, it was the division of the G.N.P.P into Waziri faction and Dr. Mustapha faction which resulted in the merger of the Governor Goni faction with the U.P.N. Under Section 64(1)(g) of the Constitution where a person whose election to the legislative house was sponsored by a political party; becomes a member of another political party before the expiration of the period for which that house was elected he would have to lose his seat in that house.
But under the proviso to the said Section 64(1)(g), if his membership of the new political party occurred because –
(i) THERE WAS A DIVISION in the political party which sponsored him and as a result,
(a) He joined the new political party
(b) he and his dissidents or faction joined the new political party; OR
(ii) THERE WAS A MERGER of two or more political parties with –
(a) The political party which sponsored him.
(b) His own faction of the divided political party which sponsored him, he does not lose his seat.
It is all agreed in this appeal that there was a division. Under the sub-section, the political party, was the one which originally sponsored the election. Under the sub-section, there could be a merger without a split leading to a merger. Each case falls within the exception.
The mischief which the framers of the Constitution wanted to avoid was carpet-crossing which, from our constitutional history, in the not distant past, had bedeviled the political morality of this country. They had however to allow for a situation where a political party, by reason of internal squabbles, had split into one or more factions. A split or division could arise without any fault of the members of a political party, resulting in a member rightly or wrongly finding himself in a minority group which may not be big enough, or strong enough to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost. Such a situation is entirely different from the fraudulent and malevolent practice of cross-carpeting politicians of yesteryears, who, for financial consideration or otherwise, crossed from one political party to another, without qualms and without conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.”
I find this case very relevant and instructive. The case of FEDECO V. GONI (SUPRA) clearly showed that the division envisaged by Section 68(1)(g) must be one that affects the whole structure of the political party, i.e., a party splitting into two factions or more. It must be a serious division not the type of division relied upon by the appellant. The National Officers of the Party must be involved.

APPEAL; ERROR IN JUDGMENT; WHETHER IT IS NOT EACH AND EVERY MISTAKE OR ERROR IN A JUDGMENT THAT JUSTIFIES THE REVERSAL OF JUDGMENT

JUSTICES:

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

HON. IFEDAYO SUNDAY ABEGUNDE
(Hon. Member representing Akure North/South Federal Constituency in the House of Representatives) Appellant(s)

AND

1. THE ONDO STATE HOUSE OF ASSEMBLY
2. THE CLERK, ONDO STATE, HOUSE OF ASSEMBLY
3. THE SPEAKER ONDO STATE, HOUSE OF ASSSEMBLY
4. MR. OLU OGIDAN
(1st Factional Chairman, Labour Party, Ondo State).
5. MR. KUNLE ODIDI
(2nd Factional Chairman, Labour Party, Ondo State).
6. 1ST FACTIONAL CHAIRMAN, LABOUR PARTY
AKURE NORTH LOCAL GOVT, ONDO STATE
(For himself and on behalf of all Labour Party Members, Akure North Local Government Ondo State.)
7. 2ND FACTIONAL CHAIRMAN, LABOUR PARTY
AKURE NORTH LOCAL GOVERNMENT.
8. CHAIRMAN, LABOUR PARTY, AKURE SOUTH LOCAL GOVT.
(For himself and as representative of all Labour Party Members in Akure South Local Government)
9. LABOUR PARTY, ONDO STATE
10. CHAIRMAN LABOUR PARTY WARD 9,
AKURE SOUTH LOCAL GOVERNMENT
11. ALH. AMINU TAMBUWAL
(Speaker, House of Representatives)
12. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)

13. BARRISTER DAN NWANYANWU
(National Chairman, Labour Party).

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): By an originating summons dated 25th January, 2012 and filed on the 26th January, 2012, the appellant as plaintiff commenced an action at the Federal High Court, Akure, wherein he sought for declaratory and injunctive reliefs against the Respondents. The reliefs appearing at pages 2-3 of the record are as follows: –
1. A declaration that under and by virtue of the proviso to Section 68(1)(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the current imbroglio, division, crisis, factionalization, centrifugal tendencies, hurly-burly and the brouhaha bedeviling the Labour Party in Ondo State, the Plaintiff/Applicant is entitled to dump the party (Labour Party) for another party and, as such is on a tera firma to have dumped the Labour Party for the Action Congress of Nigeria.
2. A perpetual order of injunction restraining the Defendants from taking any steps whatsoever or howsoever described, about, concerning or pertaining to the defection of the plaintiff as Honourable member in the Federal House of Representatives, Akure North/South Federal Constituency from the Labour Party (LP) to the Action Congress of Nigeria (ACN).
The plaintiff’s/Appellant’s originating summons was supported by a six paragraph affidavit of one Funmilayo Oladejo, a Litigation Clerk in the Chambers of S. L. Akanmode & Co. The gist of the originating process is that the Plaintiff/Appellant is a Honourable member of the House of Representative representing Akure North/South Federal Constituency, elected on the platform of the Labour Party. He alleged that as a result of internal crisis leading to the emergence of various factions within the party, he has no option than to abandon the party for Action Congress of Nigeria. He brought the suit seeking declaration and injunctive reliefs.
In response to the originating summons, the 1st – 3rd and 13th Respondents filed a counter-affidavit and written address urging the court to dismiss the Appellant’s originating summons of 25th January, 2012. While the 6th-8th and 10th Respondents filed Notices of Preliminary Objection challenging the jurisdiction of the court to entertain the action. The 1st – 3d Respondents also filed a counterclaim on 2nd March, 2012 against the Appellant and sought for the following reliefs: –
(i) A declaration that the 1st defendant to the counter-claim has automatically vacated his seat as a member of the House of Representatives having defected to another political party and having left the Labour Party which sponsored his election to the House of Representatives.
(ii) A Declaration that the 1st Defendant to the counter-claim immediately ceased to be a member of the House of Representatives upon defecting from the Labour Party which sponsored and provided him the platform to contest the seat of Akure North/South Federal Constituency at the House of Representatives for another Political Party.
(iii) An Order of court directing the 1st defendant to the counter-claim to vacate the House of Representatives seat of Akure North/South Federal Constituency forthwith.
(iv) An Order of court restraining 2nd Defendant, to the counter-claim, that is, the Speaker of the House of Representatives, or any other person acting in that office from further recognizing the 1st Defendant to the counterclaim as ‘a member of the House of Representatives representing Akure North/South Federal Constituency.
(v) An Order of court directing the Independent National Electoral Commission, (the 3rd Defendant to the counter-claim) to immediately conduct a bye-election to fill the vacant seat of Akure North/South Federal Constituency at the House of Representatives.
The trial court heard both the Appellant’s originating summons and 1st – 3rd Respondents’ counter-claim together on 30th May, 2012. In a considered Judgment delivered on the 30th day of May, 2012, His Lordship Okeke, J. entered Judgment in favour of the 1st – 3rd Respondents in terms of their counter-claim while the Appellant’s suit was dismissed.
Unhappy with the decision of the trial court, the Appellant lodged an appeal to this court vide his Notice of Appeal dated and filed 26th June, 2012 containing 10 (ten) grounds of appeal.
In compliance with the practice of this court, parties exchanged briefs of argument. Appellant’s brief of argument settled by Prof. Yemi Osinbajo (SAN) leading other counsel was dated 1st November, 2012 and filed 9th November, 2012 but deemed properly filed on 31st March, 2014. Appellant’s Reply on points of law to the 1st – 3rd Respondents’ Brief of Argument was dated 13th June, 2014 and filed same date. While appellant’s reply on points of taw to the 4th, 9th and 13th Respondents’ Brief dated 30h May, 2014 was filed on same date but deemed properly filed and served on 16th June, 2014. Appellant’s reply to the 6th, 8tn and10th Respondents’ Brief of argument dated 16th June, 2014 was filed same date. The 1st – 3rd Respondents’ brief of argument settled by F. S. Akinnibosun, Esq., Deputy Director, Civil Litigation, Ministry of Justice, Akure dated 14th June, 2014 was filed same date. While the 4th, 9th and 13th Respondents’ brief of argument settled by Olabode Olanipekun, Esq., was dated 28th April, 2014 and filed 30th April, 2014. The 5th and 7th Respondents’ brief of argument settled by Tolu Babaleye, Esq., was dated 6th June, 2014 and filed on 9th June, 2014. Last but not the least, the 6th, 8th and 10th Respondents’ brief of argument settled by Itunnu Ehinmowo, Esq., was dated and filed 30th May, 2014 but deemed properly filed and served on 16th June, 2014.
At the hearing of the appeal on 16th June, 2014 all counsel adopted their respective briefs of argument with the exception of 12th Respondents’ counsel (Mrs.) Nwokeocha who did not file one. By our record, 11th Respondent was duly served with hearing notice but he neither responded by filing brief of argument nor appeared in court.
Appellant formulated three (3) issues for determination as follows: –
i. Whether the trial court rightly interpreted the provision of Sections 68(1) and 222(a),(e) and (f) of the Constitution of Federal Republic of Nigeria, 1999 in arriving at the conclusion that the National outlook of a political party determines the existence of division or factionalization in a political party? This issue is distilled from grounds 2 and 3 of the Notice of appeal.
ii. Whether the Trial court’s interpretation of Section 68(1)(a) and (g) of the Constitution of Federal Republic of Nigeria, 1999 is correct by holding that the Appellant’s defection is contrary to the Constitution? This issue is founded on grounds 4, 5, and 6 of the Notice of Appeal.
iii. On the assumption that it is a political party that wins or loses an election, whether the trial court was right to have concluded it is a political party that defects where a member of a political party defects to another political party?
This issue is distilled from grounds 8 of the Notice of appeal.
I have observed that appellant did not include grounds 9 and 10 in any of the three issues formulated.
It is trite that grounds of appeal, with no issue formulated therefrom, are deemed as abandoned. SCC: ALHAJI ABUDU W. AKIBU & ORS V. ALHAJI MUNIRAT ODUNTAN & ORS (2000) 7 SCNJ 189 and SPARKLING BREWERIES LTD & ANOR V. UNION BANK LTD (2001) 7 SCNJ 321 and CPC V. INEC & ORS (2011) LPELR – 8257 (SC).
The 1st – 3rd Respondents formulated sole issue for determination thus: –
“Whether having regard to the provisions of sections 68(1)(g), 221 and 222 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the learned trial Judge was not right in dismissing the claim of the Appellant and granting the 1st – 3rd Respondents’ counter-claim to the effect that the Appellant automatically forfeited his seat in the House of Representatives as a member representing Akure North/South constituency having defected from the Labour Party, a political party that sponsored him in the said election to another political party.”
The 4th, 9th and 13th Respondents also formulated a sole issue for determination in this appeal as follows:
“In view of the entire fads and circumstance of this case, whether the Lower Court rightly applied the provisions of section 68(1)(g) of the 1999 Constitution in conjunction with other constitutional provisions as well as provisions of the Electoral Act.
(Grounds 2, 3, 4, 5, 6 and 8 of the Notice of Appeal).”
The 5th and 7th Respondents identified two issues for determination as follows: –
1. Whether from the facts of the case’ the trial Judge rightly interpreted Section 68(1)(a) to the exclusion of the rider to the proviso to Section 68(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria when it held that Appellant’s defection is contrary to the Constitution?
2. Whether the trial court was right to have held that it is a political party that defects where a member of a Political Party defects to another party.
The 6th, 8th and 10th Respondents also distilled a sole issue from the ten (10) grounds of appeal for determination in this appeal. The sole issue read thus: –
“Whether in view of the affidavit evidence and exhibits before the trial court, the court was right in dismissing the appellant’s claim as well as granting the counter-claims before it.”
I have examined all the issues formulated by parties. I will adopt the issues raised by the appellant in determining this appeal. The issues raised by the respondents will be treated along with the appellant’s issues where appropriate. I will briefly summarize the submissions of each counsel before resolving the issues.
ISSUE ONE
Issue one has been reproduced (Supra) and same distilled from grounds 2 and 3 of the Notice of Appeal. Learned senior counsel for the appellant commenced his argument by stating the legal status of political party in Nigeria. Learned counsel contended that the existence of a political party is a creation of the Constitution of Federal Republic of Nigeria, 1999. See Section 221 of the 1999 Constitution. That under the Electoral Act, 2010, upon registration of a political party, it becomes a body corporate with perpetual succession and a common seal and may sue or be sued in its corporate name. See Section 80 of the Electoral Act, 2010. Reference was also made to Sections 221-229 of the 1999 Constitution of the Federal Republic of Nigeria, that the said Constitution accorded a political party statutory recognition. Learned SAN, submitted that the general intendment of Sections 221-229 of the Constitution is to establish a registered and legitimate association to be called ‘Political Party’. That the Section also legislates generally on the status of a political party as a corporate entity distinct from its members and internal structure. According to counsel, the law provides for and recognizes the existence of Political Party Rules and Constitution. Reference made to Sections 222(C) and 223(1) (a and b) of the 1999 Constitution. That one of the unfettered rights enjoyed by political parties generally is the power to regulate their domestic and internal affairs. Counsel argued that a political party’s Constitution is sacrosanct and the courts will not interfere in the internal affairs of a political party. Reliance was placed on ONUOHA V. OKAFOR (1983) 2 SCNLR PAGE 24 and SULEIMAN ABIODUN OGUNBIYI V. ISMEL ADISA OGUNDIPE & 3 ORS (1992) 9 NWLR (PT.263) 244. That courts have been very careful not to intermeddle with the domestic affairs of political parties. See ONUOHA V. OKAFOR (SUPRA).
Learned senior counsel further submitted that, it is trite and undeniable that the structural composition of a political party in Nigeria ranks from the Ward level to the National level. He said, specifically the levels are: Ward, Local Government, State and National Levels. That it is practically inconceivable that the national outlook of a political party solely reflects the national officers of the political party to the exclusion of other statutory and legitimate organs of the political party of other tiers of government. According to the learned senior counsel, the existence of political parties at different tiers of government is majorly for operational and administrative convenience and does not in any way create a gap/segregation in terms of political party recognition and entity.
The learned senior counsel contended in the appellant’s brief of argument that the trial court wrongly relied and applied the provision of Section 222(a), (e) and (f) of the 1999 Constitution. Learned senior Counsel argued that the elementary rule of statutory interpretation requires words to be given their ordinary and simple interpretation unless such interpretation will occasion miscarriage of justice. That the courts have been very assertive and consistent on this position. Reliance was placed on ABUBAKAR v. A. G. FEDERATION (2007) 3 NWLR (PT.1022) 636-637 PARAS F-D wherein the Supreme Court held that:
“In construing the provision of a statute where the words are clear and unambiguous, it is the words used that prevails and not what the court says the provision means”
See also AWUSE V. ODILI (2003) 18 NWLR (PT.851) 180-181 PARAS H-D. That the trial court in its judgment delivered on May 30th, 2012 strongly relied on but misapplied the provision of Section 222(a), (e) and (f) of the 1999 Constitution of Nigeria, which is simple and clear. Reference was made to an excerpt in the judgment of the trial court delivered on 30th May, 2012 as contained on page 283 of the Record, which read thus:-
“Section 222(a),(e) and (f) of the Constitution talks of National outlook of party that only national officers are recognized for purpose of political party and only the National Headquarters of Association is recognized and given authority. No reference was made to ward, local government or state officers under the said Section 222(a), (e) and (f) of the Constitution.”
According to the learned senior counsel, the above excerpt represents a misinterpretation of Section 222(a), (e) and (f). That a cursory look at Section 222(a), (e) and (f) of the Constitution clearly shows no mention of the phrase “National Outlook of Party” as to qualify certain officers as recognized officers of the political party to the exclusion of other local or regional political party officers. He argued that the law is clear and requires no cosmetic interpretation the trial court has handed out. Counsel contended that Section 222(a), (e) and (f) of the 1999 Constitution simply relates to conditions for eligibility of an association to operate as a political party in Nigeria, the need for every political party in Nigeria to have the Headquarters at Federal Capital Territory, Abuja and to have the names and addresses of its national officers registered with the Independent National Electoral Commission (INEC) and nothing more. The case of INEC v. MUSA (2003) 3 NWLR (Pt.806) 72 was cited in aid. Counsel was of the view that the trial court was wrong in using Section 222 which simply relates to conditions for eligibility of an association as a political party to interpret Section 68(1) which deals with condition for defection of members of a political party to another. According to him, it will be inconceivable and inapt to mention that only ‘national outlook’ of a political party are recognized for the purpose of determining the crisis within a political party. Learned senior counsel posed a question as to what happens to other regional and local organs that make up the corporate existence of the political party? He contended that it is undisputable that, political party fields candidates into various elective positions in all the three tiers of government, that is, Local, State and Federal Levels. That trial court was wrong to have held that the national outlook of a party is recognized. The learned senior counsel further contended that, the attitude of Nigerian Court in the interpretation of the provision of any statute is one of open mindedness and broadness. Reliance was placed on ADELEKE V. OYO STATE HOUSE OF ASSEMBIY (2006) 16 NWLR (PT.1006) 608 and INEC V. NYAKO (2011) 12 NWLR (PT.1262) 439. That if the attitude and approach of courts to interpretation of provisions in a statute is one of liberalism, it then necessarily follows that a circumscribed interpretation of statute is at best a ‘contravention and totally unacceptable. That the trial court rather than adopt a liberal and broad interpretation of Section 222(a), (e) and (f) of the 1999 Constitution, chose to constrain its interpretation to embrace only national officers of Labour Party – the 9th respondent in this appeal, to the exclusion of other regional and local officers that make up the corporate entity of a political party. Counsel also referred to an excerpt in the trial court’s judgment at page 283 of the record wherein he said:
“No reference was made to ward, local government or state office or officer under the said Section 222(a), (e) and (f) of the Constitution and contended that there is no basis for the trial courts conclusion.”
He said the section prescribes conditions for political party and not the status of a political party. That the decision of the trial court is erroneous having imputed to Section 222 of the Constitution what is not contained therein. In IMAH V. OKOGBE (1993) 9 NWLR (PT.316) 159 at 173 PARA C-D, the Supreme Court re-emphasized the law when it succinctly puts thus:
“Plain words must be given their plain meanings. See ABIOYE V. YAKUBU (1991) 5 NWLR (PT.190) 130. A court has no power to import into the meaning of a word something not in it. See BELLO v. ATTORNEY GENERAL-OYO STATE (1985) 5 NWLR (PT.45) 828″
See also AWOLOWO V. SHAGARI (1979) 6-9 SC 37, wherein the Supreme Court summarized the role of a Judge. In the same case the Supreme Court re-established the position of the law when it puts it thus:
“It is also relevant, we think, to point out that anybody called upon to interpret any kind of statute should not, for any reason, attach to its statutory provision, a meaning which the words of the statute cannot reasonably bear.”
That although, no express mention of ward, local government or State officer in Section 222(a), (e) and (f) of the 1999 Constitution, nonetheless it is not prohibited as far as the administrative and operational structure of the political parties are concerned. The legal ‘status of a political party entails its recognition as a whole structure and not in piecemeal. According to counsel, it will be legally inapt and unfounded to exclude them based on the Supreme Court decision in A.G. ONDO STATE V. A.G. EKITI (2001) 17 NWLR (PT.743) 706 at 770 PARAS A, wherein the court held, per Karibi Whyte, JSC:
“It is important to bear in mind the elementary and fundamental principle of law that what has not been prohibited is allowed.”
In all, appellant urges this court to allow his argument and set aside the judgment of the trial court made on May 30th, 2012.

ISSUE TWO:
While arguing this issue, the learned senior counsel submitted that the trial court was wrong in its interpretation of Section 68 1(a) and (g) of the 1999 Constitution which interpretation was premised on erroneous view that Section 222 intends ‘national outlook’ of a political party. That Section 68 (1)(a) and (g) is simple and unequivocal. Counsel contended that whilst Section 68 (1) (a) and (g) of the 1999 Constitution stipulates certain condition upon which a member of the State or of the House of Representative shall vacate or lose his seat, a rider exists to the effect that a division in the political party of which he was previously a member will sufficiently justify a defection. He argued that a division or faction within a political party is a constitutionally recognized and valid ground for defection from one political party to another. That the fundamental question in this appeal is whether or not a division existed in Labour Party at the relevant time. Reference was made to an excerpt from the Judgment of the trial court at page 286 of the record. That from the excerpt referred to, it is clear that the existence of division or faction in Labour Party is undeniable in Ondo State. According to Counsel, this finding necessitated the trial court’s conclusion that such limited and circumscribed division makes the appellant’s defection unjustifiable or impermissible. Learned senior counsel argued that the proviso to Section 68 of the 1999 Constitution applies to party’s structure at all levels and not limited to national level. According to the learned senior counsel, considering the fact that sponsorship of candidates for House of Representatives is at the State level of the Labour Party, the restrictive interpretation of the proviso to Section 68 is not permissible to invalidate the appellant’s defection. That the mention of political party in the proviso to Section 68(1) of the Constitution is explicit and requires no imaginative or cosmetic interpretation. It was the view of the learned senior counsel that the intendment of the proviso is in two prongs. The first is to prevent cross-carpeting of members of political party who are elected on the platform of a party to defect into another party. The second is to ensure that political party maintains unity within its structure at all levels and at all times. Reliance was placed on A.G. ABIA STATE v. A.G. FEDERATION (2005) 12 NWLR (PT.940) 452 at 503 and 516.
Learned senior counsel further contended that the proviso to Section 68 of the 1999 Constitution basically requires a division in a political party to justify a defection from a political party to another and nothing more. That, be it a division at the local, state or national levels it is immaterial, counsel argued. He said election into the House of Representatives is based on constituencies from the state level. According to the learned senior counsel the decision of the trial court that the defection of the appellant from Labour Party (9th Respondent) to Action Congress of Nigeria (ACN) is perverse. That the trial court closed its eyes to the avalanche of evidence of crisis and factionalizations in the Labour Party in Ondo State where the appellant hails from and represents in the House of Representatives. As to the meaning of perverse decision or finding the case of ILIYA A. LAGGA V. AUDU I. SARHUNA (2008) 16 NWLR (PT.1114) 427 at 474, per Niki Tobi, JSC, was cited in support. See also AVOP PLC v. A.G. ENUGU STATE (2000) 7 NWLR (PT.664) 260 at 280 and page 280 PARAS G – H. Counsel argued that the implication of the trial court’s failure to construe the evidence of several other pending matter (Suit No:FHC/AK/CS/1/2012; Suit No: FHC/AK/CS/2/2012 and Suit No:AK/245/2010 in respect of the Labour Party leadership in Ondo State as contained in the Appellant’s further and better affidavit in support of the originating summons on page 193-219 of the record is that its decision was based on wrong evidence or that it has discountenanced obvious fact contained in the record in which case the trial court held that the Appellant’s defection was misconstrued and contrary to law. That the finding is perverse and has occasioned a miscarriage of justice to the appellant.

ISSUE THREE:
The contention of the learned senior counsel is that the appellant in this appeal has sufficiently established the corporate existence of a political party as a distinct personality with perpetual succession, right to sue and be sued and a common seal. According to counsel, whilst it is undeniable that a candidate wins or loses an election on the platform of a political party that sponsored him/her, it is not only a political party that wins or loses an election, the candidate also does. That this submission is premised on the ground that the political party and its members or candidates are two separate and distinct entities. Reliance was placed on OBASANJO v. BUHARI (2003) 17 NWLR (PT.850) 510 at 563. The Supreme Court had cause to distinguish between the two persons and puts the law succinctly thus:
“By virtue of Section 10 of the Electoral Act, 2002, a registered political party is a body corporate and a legal entity which can sue and be sued. Thus, a political party and its members are not one and the same. The law gives them independent recognition and rights.”
See also the concurring judgment of Edozie, JSC on page 585 of the law report. That from the current position of the law as enunciated by the Supreme Court in OBASANJO V. BUHARI (SUPRA) the trial court was wrong by holding that it is political party that defects into another party for the avoidance of doubt. Reference was made to the excerpt from the judgment of trial court made on 30th May, 2012 at page 336 of the record. According to counsel, the provision of Section 68(1) of the 1999 Constitution is not absolute. That while Section 68 (1) (a-g) establishes certain conditions upon which a member of the Senate or of the House of Representative shall vacate his seat in the House of which he is a member, a caveat exists to whittle-down the operation of the condition for vacation of seat. That the provision of the Constitution is clear and categorical on the issue of defection to another party.
He argued that by Section 68(1) of the 1999 Constitution, it is the member within a political party that defects and not a political party. That being an association with a distinct legal personality, it is absurd and unfounded to hold that it is a political party that defects to another party as against the individual. Appellant urged the court to allow his contention and set aside the judgment of the trial court delivered on 30th May, 2012.
As earlier noted, the 1st-3rd Respondents formulated one issue for determination and same contained their response. Mr. Akinnibosun, Esq., Deputy Director, Civil Litigation, submitted on behalf of the 1st – 3rd Respondents that the learned trial Judge was right to have dismissed the appellant’s originating summons and grant the 1st – 3rd Respondents counter-claim. Counsel submitted that it is well settled law that when a Judge is faced with the construction, interpretation and application of a statutory provision to the facts ascertained by him in a case, he must:
(a) Read the statute to ascertain whether and how its meaning relates to the case in controversy.
(b) If the language, that is, the words or meaning ascertained from the language resolve the controversy, the inquiry terminates there.
(c) But if the language or meaning does not resolve the controversy then the Judge must adjust and apply an appropriate judicial rule to decide and resolve the case or the issue in controversy.
Cited in aid is VICTOR ADEGOKE ADEWUNMI & ANOR V. THE ATTORNEY GENERAL OF EKITI STATE & 6 ORS (2002) I SCNJ 27 at 49.
Learned DDCL contended that, it is also settled that in construing or interpreting the provisions of a statute, the entire provisions of the law, that is, the constitution must be construed together. See: NAFIU NAFIU v. THE STATE (1980) 8 -11 SC 130; (1981) 2 NCLR 293; MOBIL OIL (NIG.) LTD. V. FEDERAL BOARD OF INTERNAL REVENUE (1977) 3 SC 35 at 74 and (1979) 6-9 SC 32 and OGUNMADE V. FADAYIRO (1972) 8-9 SC 1. He contended that applying the above rules to the case at hand, section 68(1)(g) of the 1999 Construction of the Federal Republic of Nigeria is clear and unambiguous. Reference was also made to Sections 221, 222 and 229 of the Constitution. Learned counsel argued that a cursory reading of the above cited sections of the 1999 Constitution clearly shows that the words and language used are quite clear and unambiguous and that the legislature envisaged a National outlook of a political party. That it is a cardinal principle of construction that in seeking to interpret a particular section of a statute or subsidiary Legislation one does not take the section in isolation but one must approach the question of interpretation on the footing that the section is part of a greater whole. In other words, it is the entire provision of the law that is looked at when construing or interpreting the provisions of the Constitution. Reliance was placed on ATTORNEY-GENERAL, BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATION & 22 ORS (1982) 3 NCLR; (1981) 10 SC 1; (1981) NSCC 34. Counsel contended that Section 222 when read together with the provisions of Sections 221, 223 to 229 shows that the legislature no doubt envisaged a national outlook of a political party. According to learned counsel, if the drafters of the 1999 Constitution had not envisaged a national outlook of a political party, the words ‘local’ and ‘state’ would have been expressly mentioned. It is trite law that the express mention of one thing is the exclusion of another.
Learned DDCL posed a question as to: whether Labour Party in Ondo Sate can sue and be sued? Counsel answered in the negative. That the learned trial Judge was right to have held that the division within the Labour Party in Ondo State alluded to by the Appellant was not within the contemplation of the drafters of the 1999 Constitution to warrant the defection of the appellant. That appellant cannot take advantage of the proviso to Section 68(1)(g) of the 1999 Constitution. That the appellant’s membership card was signed by the National Chairman and Secretary of the Labour Party.
Learned DDCL further submitted that the appellant’s defection to another party was not in the manner contemplated by the 1999 Constitution as such the trial court was right to declare the appellant’s seat in the House of Representatives vacant. That to have done otherwise would not only create absurdity but entrenched an illegality. It was his view that the learned trial Judge rightly held that the appellant cannot take advantage of the proviso to Section 68(1)(g) of the 1999 Constitution since there was no crisis within the Labour Party in the manner envisaged by the Constitution to warrant the appellant’s defection to another political party from the political party that sponsored and provided him the platform to contest the seat of Akure North/South Federal Constituency, at the House of .Representatives. The law is trite that the beneficial interpretation which would give meaning and life to the society should always be adopted in order to enthrone peace, justice and egalitarianism in the society. Reliance was placed on FEDERAL REPUBLIC OF NIGERIA v. OSAHON (2006) 5 NWLR (PT.973) 361 at 377 RATIO 7. According to counsel, the decision in the Supreme Court case cited supra clearly justified the position taken by the learned trial Judge in dismissing the appellant’s originating summons and granting the counter-claim of the 1st-3rd Respondents as to do otherwise will promote an illegality which was not the intention of the legislature. That appellant cannot take advantage of the proviso to Section 68(1)(g) of the 1999 Constitution to perpetuate illegality and fraud against the electorate of Akure North/South Federal Constituency. Counsel contended that it is not the function of a court of law to sympathize with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship. That it is rather the function of the legislature. See KRAUS THOMPSON ORGANIZATION V. N.I.P.S. (2004) 17 NWLR (PT.901). That a trial court has a duty to do justice by interpreting the statute in a way as not to defeat the intention of the legislature no matter whose ox is goosed. That the judgment was not perverse and does not occasion a miscarriage of justice. He urged the court to dismiss the appeal.
I have carefully gone through the appellant’s reply on point of law to the 1st – 3rd Respondents’ brief.
A reply brief should be strictly limited to finding answers to questions raised in the Respondents’ brief, and which the appellant had not addressed or dealt with in the appellant’s brief.
In the instant reply, appellant introduced a new issue which is not allowed. The new point raised relating to recall of ‘candidates under Section 69(1) of the 1999 Constitution was not raised in the Respondents’ brief. See ADGEVODE V. ILANE (2001) 12 SC (PT.11) 94 and MOZIE & ORS V. MBAMALU & ORS (2006) 15 NWLR (PT.1003) 466. In the circumstance I will discountenance the reply brief. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief. Appellant violated the provisions of Order 18 Rule 5 of the Court of Appeal Rules, 2011.
The 4th, 9th, and 13th Respondents’ response is as stated in their sole issue raised for determination. Learned counsel submitted that the determination of this appeal would majorly turn on an appreciation of the corporate nature and status of entities that exist as political parties within the limits and perimeters of the statutory frame-work for the establishment and regulation of political parties in Nigeria which are the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act, 2010. That contrary to the appellant’s submission in paragraph 15 at page 8 of its brief, there is no need to resort to any external aid or document outside the Constitution and the Electoral Act for the determination of the nature of a political party and the type of division envisaged in the proviso to section 68(1)(g) of the Constitution. Reference was made to Section 68(1)(g) of the Constitution. According to counsel, the doctrine and principle of statutory interpretation in present day Nigeria have climaxed and crystallized to not just interpreting clear and unambiguous words in a statute in line with their ordinary grammatical meanings but direct application of the ordinary grammatical meanings contained in those statutes. Cited in aid are: CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD. V. EKPO (2008) 6 NWLR (PT.1083) 362 at 392 and UGWU v. ARARUME (2007) 12 NWLR (PT.1048) 367 at 437. In construing to Section 68(1)(g) learned counsel contended that the said Section implies the following:
(i) A member of the House of Representatives is sponsored by a political party to that legislative house;
(ii) A member of the House of Representatives, who is so sponsored, automatically vacates his seat if he becomes a member of another political party before the expiration of the life span of the House of Representatives for which he was elected.
(iii) A decampee legislator would escape the consequence in (ii) (Supra) if his membership of another political party is as a result of division in the sponsoring political party or merger of the sponsoring political party or a faction thereof.
Learned counsel also identified the following facts as undisputed and constitutes common ground between the Appellant and Respondents herein, to wit:
(i) The appellant was sponsored to the House of Representatives by the Labour Party
(ii) From the processes filed by the appellant at the Lower Court, he positively asserted that he has dumped the Labour Party.
(iii) By virtue of section 124 (i) of the Evidence Act, 2011 this court takes judicial notice of the fact that the life span of the National Assembly into which the appellant was elected has not yet expired.
(iv) Arising from (i), (ii), and (iii) Supra, appellant was sponsored by a political party and has become a member of. another political party before the expiration of a period for which the House was elected.
Learned counsel contended that when the above uncontested facts are juxtaposed against the clear intendment of Section 68(1)(g) of the Constitution, it becomes axiomatic that the Appellant perfectly fits as one of such persons that the Constitution in Section 68(1) anticipates and mandates to compulsorily vacate his seat in the House of Representatives. Learned counsel submitted that Section 68(1) is exhaustive on the effect of dumping a sponsoring political party after success at the polls. Counsel argued that it must have full force and effect in this circumstance without any discretionary allowance. According to counsel, it is settled that where the Constitution or a statute employs the use of the word ‘shall’, what is stipulated therein becomes mandatory and compulsory to the express exclusion of any facultative or discretionary inference. Cited in support is the case of OGIDI V. STATE (2005) 5 NWLR (PT.918) 286 at 327 and UGWU V. ARARUME (SUPRA) and BAMAIYI V. A.G. FEDERATION (2001) 12 NWLR (PT.727) 428 at 497, It was the view of learned counsel that if one adopts a community reading in interpreting the Constitution, an effortless appreciation of why the Constitution would place so much primacy on sponsoring political parties such that decampee legislators automatically lose their seats in parliament becomes imperative. He said Section 221 of the 1999 Constitution sheds much light on the legal justification for the primacy placed on political parties in Section 68(1)(g). That deducing from the said provision is the fact that it is the political parties that actually perform the role of soliciting for votes in an election. Counsel cited in aid the case of AMAECHI V. INEC (2008) 5 NWLR (PT,1080) 227 at 317-318 per Oguntade, JSC. To further emphasize the importance of political parties and their dominance in the electoral process counsel relied on Section 44(1) of the Electoral Act, 2010 to show that the contest in an election is now settled to be between political parties. See: AGBAJE V. FASHOLA (2008) 6 NWLR (PT.1082) 90 at 132. According to counsel, it is also discernible from the provisions of Section 44(1) of the Electoral Act, 2010, that voting electorate who cast their vote by thumb-printing, against the political party of their choice, actually vote for the party and not for the candidate. Learned counsel further contended that the necessity to give effect to the provision of Section 68(1)(g) of the 1999 Constitution becomes more compelling when it is realized that the provision on decampee legislators is specific to members of the legislature. That there is no similar express provision for the executive. Reliance was placed on ATTORNEY-GENERAL OF THE FEDERATION V. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 at 178-179. He urged the court to align itself with the decision of Supreme Court and dismiss the appeal. That in doing so, the court will approve the operation of the punishment prescribed in Section 68(1)(g) of the Constitution, against the appellant.
As to the provisio of Section 68(1)(g) of the Constitution, learned counsel submitted that they are not unaware of the import and purport of a proviso whenever same is inserted in any statutory provision as to create an exception and derogation from the intendment of the statutory provision. Reliance was placed on NDIC v. O’SILVAWAX INT’L (2006) 7 NWLR (PT.980) 588 at 611; UNIVERSAL TRUST BANK OF NIGERIA LTD. V. UKPABIO (2001) FWLR (PT.51) 1889 at 1899 PARAS G and NIPOST V. ADEPOJU (2003) 5 (NWLR) (PT.813) 224 at 242 PARAS A-B. Counsel was of the view that where circumstances envisaged in the said proviso arise, the absolute provision of Section 68(1)(g) might not operate. Appellant contends that division in a local branch will justify him as a holder of public office in the national/federal parliament, to jump ship. Counsel on his part contended that appellant woefully failed to prove the said division: That a division within a local branch which does not affect the single corporate and national entity of the political party, cannot be within the contemplation of the phrase, division in the political party’ is contemplated in the proviso of Section 68(1)(g) of the Constitution. Counsel was of the view that since the political party provided for, and recognized under these statutes is a single corporate entity, the division anticipated in Section 68(1)(g) of the Constitution must only relate to a division in a national entity. Counsel referred to concurring excerpts on this submission in the appellant’s brief and the cases of ARTRA IND. (NIG.) LTD. v. N.B.C.I (1998) 4 NWLR (PT.546) 357 at 408 and SEISMOGRAPH SERVICE (NIGERIA) LIMITED V. EYUAFE (1976) 9-10 SC 135 at 146 and contended that if appellant admits in several breadths and instances in his brief referred to, that a political party is one single entity as recognized by the Constitution and Electoral Act, it then cannot be argued as he attempts to do in other breadths that divisions that do not affect the whole structure of the party would qualify as an exemption under Section 68(1)(g) of the Constitution. That the arguments amount to ‘approbating and reprobating which cannot be permissible in law. See: LABODE V. OTUBU (2007) 7 NWLR (PT.712) 256 at 283-284; NBC PLC V. EZEIFO (2001) 12 NWLR (PT.726) 11 at 28-29 and NJABA L.G.C V. CHIGOZIE (2010) 16 NWLR (PT.1218) 166 at 188. It was also his contention that constitutional provisions like every other statute, must be construed communally and in a whole scale manner. See AMAECHI V. INEC (SUPRA). He also relied on the legal principle that general statutory provisions are interpreted with reference to the specific. Reliance was placed on the cases of: INAKOJU V. ADELEKE (2007) 4 NWLR (PT.1025) 423 at 529 PARAS C-E; APAPA V. INEC (2012) 8 NWLR (PT.1303) 409 at 430; F.G. AND ADEDAYO v. PDP (2013) 17 NWLR (PT.1382) 1 at 95. That references to political party in Section 68(1)(g) of the Constitution are general and those references must take their bearing from specific provisions on political parties in Section 222 of the Constitution and Part (V) of the Electoral Act. Learned counsel referred to Section 221-229 of the Constitution with specific reference to Section 222 and 229 and submitted that what the Constitution contends with and contemplates as a political party is that singular organization which has a national spread. To buttress this point, counsel referred to Section 80 of the Electoral Act. That failure to meet the requirements of a national outlook will deny any association the privilege to become registered as a political party. That the court has no jurisdiction in its interpretation capacity to expand the contents of a statute by imputing what is not expressly stated therein into the statute. See DRAGETAMOS CONST. (NIG.) LTD. v. F.M.V. LTD (2011) 16 NWLR (PT.1273) 308 at 395. Learned Counsel also referred to Section 65(2)(b) of the 1999 Constitution and Section 31 of the Electoral Act to demonstrate the fact that sponsorship of candidates for election into elective offices particularly the House of Representatives is not at the state level as argued by the appellant but by the registered political party which is the national juristic body, corporate, registered as the political party. Learned counsel submitted that the division anticipated under Section 68(1))(g) of the Constitution cannot be division in a State chapter. According to counsel at pages 284-285 of the record, the Lower Court found as a fact after reviewing representations by INEC, that there was no division within Labour Party. That appellant’s assertion and reliance on division can properly be classified as self-induced divisions. It was also the view of learned counsel that appellant filed the cases before the Federal High Court in quick succession bearing case numbers 1 and 2 deliberately to pave the way for appellant’s defection and filing of the present suit, which now bore case number 3 right after the earlier ones filed. That the Constitution obviously did not and cannot intend to approve this type of self-induced division to justify defections.
The submission of counsel under paragraphs 5.29, 5.30 and 5.31 are specifically in response to appellant’s issue 3. Appellant’s issue 3 challenges the Lower Court’s slip that defection is done by a political party. Counsel contended that the inclusion of the words ‘or defects’ in line 5 of the judgment of the Lower Court at page 336 of the record is a slip. That the law is settled that not every error in the judgment of a court that will lead to the said decision being set aside. Reliance was placed on ODUKWE V. OGUNBIYI (1998) 8 NWLR (PT.561) 339 at 350; OJE V. BABALOLA (1991) 4 NWLR (PT.185) 267 at 282; GWONTO V. THE STATE (1983) 1 SCNLR 142, 152; ONAIOBI V. OLANIPEKUN (1985) 7 SC (PT.2) 156, and 153. That the error is not material in any respect and cannot under any guise qualify as being fundamental. He said appellant’s issue 3 is therefore a classical case of crying wolf where none in fact exists.
In the brief of argument, learned counsel finally attacked the principal reliefs sought by the appellant that they do not qualify for irreducible minimum standards of reliefs that can vest jurisdiction on a court of law. Reliance was placed on UZOUKWU v. EZEONU II (1991) 6 NWLR (PT.200) 708 at 784-785. That it is unprecedented for a Court of law to give an order that will entitle a person to dump a political party. It was further argued that the relief relating to injunction being consequential cannot survive on its own. That it is akin to putting something on nothing. See AWONIYI V. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT.676) 522 at 544; HEMASON (NIG.) LTD. V. PETROTEC NIG. LTD. (1993) 3 NWLR (PT.283) 548 at 554 and AKAPO V. HAKEEM HABEEB (1992) 6 NWLR (PT.247) 266 at 297 – 298; SKEN CONSULT (NIG.) LTD. V. UKEY (1981) 1 SC 6; MACFOY V. U.A.C (1961) 3 ALL ER 1159 at 1172.He urged the court to dismiss the appeal.
I wish to note that relevant portions of appellant’s reply on points of law to the 4th, 9th and 13th Respondents’ brief will be referred to where necessary while resolving the issues raised for determination. I have however, observed that appellant introduced new issue relating to recall of candidates under Section 69(1) of the 1999 Constitution. Appellant is not allowed to introduce new issue in a reply brief. I will discountenance argument relating to that issue. The response of the 5th and 7th respondents is covered under the two issues formulated by them. Learned counsel contended that it is settled law that where the words of a statute are plain and free from ambiguity, same should be given their ordinary grammatical meaning. That the court should not read into a statute, what is not provided therein. Counsel referred to Section 68(1)(a) and (g) of the 1999 Constitution and the case of A.G. NASARAWA STATE V. A.G. PLATEAU STATE 242, 3 SC (PT.11) 1 at 7 LINES 35. Learned Counsel Submitted that the implication or literal interpretation which the above cited provision connotes simply put, is that, a division or faction within a political party is a constitutionally recognized and valid ground for defection from one political party to another. That in this appeal as presently constituted, there exists a division and a huge crisis, in the Labour Party, as at the time the appellant defected to another party is not in doubt because this fact was admitted by the trial court in its judgment. That the error in the said judgment was occasioned when the trial court held that the faction is limited to Ondo State. Reference was made to the excerpt from the judgment of the trial court appearing on page 286 of the record. According to counsel, it is ‘crystal clear from the excerpt of the judgment of the trial court that the existence of a division in Labour Party is undeniable in Ondo State, Nigeria. That upon a critical and constructive evaluation of the
rider to the proviso of Section 68(1)(g) of the 1999 Constitution ‘discloses that the proviso applies to all the party’s structure at all levels and not exclusively to the representatives at the national level. That as long as division exists in the party regardless of the level of structure at which the division exists, a member of the house elected under the platform of the party in crisis may legally defect to another party without his seat being declared vacant. According to counsel, the learned trial Judge erred and thereby defeated the evident purpose of the Section when it imported the provision of Section 68(1)(a) and (g) what was not intended by the legislature. Reliance was placed on ELELU HABEEB & ANOR v. A.G. FEDERATION & 2 ORS (2012) 2 SC (PT.1) 145 at 164 LINES 10-35, at 165 LINES 7-12. He urged the court to set aside the decision of the trial court.
Under issue 2, learned counsel referred to Section 222(a-c) of the 1999 Constitution and submitted that a political party or a political association differs from its members in terms of legal personality. That as long as a political party is mandated to be registered with INEC as a legal personality same cannot be construed as the same legal entity with its members. Cited in support is the case of OBASANJO V. BUHARI (2003) 17 NWLR (PT.850) 510 at 563. Counsel contended that based on the position of the law as stated by the Supreme Court in OBASANJO V. BUHARI (SUPRA), the learned trial Judge erred by holding that it is a political party that defects to another party. He urged the court to set aside the judgment.
The 6th, 8th and 10th Respondents also responded in their brief of argument. Learned counsel submitted that in view of the affidavit evidence before the learned trial Judge as well as the exhibits annexed thereto, the trial court was right to have dismissed the claims of the appellant in its entirety as well as grant the counter-claims as prayed. Learned counsel contended that it is glaring from the affidavit evidence and exhibits before the trial court that parties are ad idem that the appellant was elected into the Federal House of Representatives on the platform of Labour Party. It is also not in dispute that the appellant has defected from Labour Party, the political party on whose platform the appellant was elected and moved to another political party. Counsel referred to Section 68(1)(g) of the 1999 Constitution. That in interpreting statutory provision, the wordings of the statute must be examined critically in order to ascertain the intention of the drafter. It is also well settled principle of law that in interpreting statutes, the totality of the provisions in the statute must be read holistically to understand the import of the statute. Reliance was placed on GBEDU v. ITIE (2011) FWLR (PT.553) PAGE 1857 @ 1880; ADELEKE V. OYO STATE HOUSE OF ASSEMBLY (2006) ALL FWLR (pt.319) 862 and TUKUR v. GOVERNMENT OF GONGOLA STATE 4 NWLR (PT. 117) 517 PARA G. According to counsel, it is not in dispute that appellant’s election was sponsored by Labour Party and that appellant became a member of another political party.
That it is also obvious that the period for which the house was elected had not expired. Counsel contended that appellant having admitted that he was sponsored by a political party and that he had left the same political party to another, the facts admitted need no further proof. Cited in support are NURUDEEN ADEBISI ADEYE & ORS v. CHIEF SANMI ADESANYA & ORS (2001) 2 SC 171, 177 and SALAWAL MOTOR HOUSE LTD. V. LAWAL (2000) FWLR (PT.3) 517. Counsel argued that what is in issue is whether the membership of the latter political party is as a result of a division in the political party of which he was previously a member. His contention is that appellant failed to show that there existed any division in the party that sponsored him. That by their counter-claims, the respondents showed that appellant’s defection is baseless, unwarranted and not predicated on any division in the said party. The necessary implication is that appellant shall vacate his seat. He relied on the case of ATTORNEY-GENERAL OF THE FEDERATION v. ABUBALAR (2007) 10 NWLR (PT. 1041) 178, wherein it was held that:
“It is manifest from the above quoted constitutional provision that the law maker intended to and need have made punishable the defection of an elected member from the political party that sponsored him to another political party before the expiration of the term for which the member was elected by declaring seat vacant.”
According to counsel, there is no doubt that the provision of Section 68(1) (g) of the 1999 Constitution did not expressly incorporate Section 222(a), (e) and (f) of the 1999 Constitution. That statutes are not to be interpreted disjunctively but conjunctively and holistically. That assuming without conceding that the reliance placed by the learned trial Judge on the provision of Section 222(a), (e) and (f) of the 1999 Constitution was erroneous, he contended that the conclusion of the trial court is unassailable and right. He said in law notwithstanding the reasons adduced by the Judge in arriving at his judgment, the fact that the reasoning is wrong does not mean that the conclusion will not be accepted by the appellate court. That the conclusion reached by the trial Judge that appellant shall vacate his seat is justifiable. According to him, the operative word used in Section 68(1)(g) of the Constitution is ‘shall’ which is mandatory. Cited in support are: KALAMU v. GRUIN (2003) 16 NWLR (PT.847) 493: GBADAMOSI V. NRC (2007) ALL FWLR (PT. 367) 367, 855, 859, 471 and SOKOTO STATE GOVT. V. KAMDEX LTD. (2007) ALL FWLR (PT.365) 470, 471. He urged the court to dismiss the appeal.
Appellant identified points of law in reply to the 6th, 8th and 10th Respondents’ brief of argument. I will refer to the relevant points where necessary while resolving the issues raised for determination. I wish to note that point two raised in the reply brief relates to a new issue which is not allowed. The issue of recalling of candidates under Section 69(1) of the Constitution was never raised in respondents’ brief. I will discountenance it.
I find it necessary at this stage to consider the point of law raised by the learned Attorney-General during his oral submission regarding the competency of the 5th and 7th Respondents’ brief of argument. By order of court, the 5th and 7th Respondents’ brief of argument was deemed properly filed and served on 16th June, 2014.
On same date all briefs were adopted by respective counsel. The learned Attorney-General pointed out that 1st – 3rd Respondents were served with the 5th and 7th Respondents’ brief of argument that morning of 16th June, 2014. He urged the court to strike out the brief as it was filed in violation of Order 6 Rule 2 and Order 9 Rule 1 of the Court of Appeal Rules, 2011. This provision enjoins any Respondent that intends to challenge the judgment of a court to file Notice of Appeal, cross-appeal or Respondents’ Notice against the decision of the trial court or that the decision be varied. The 5th and 7th Respondents did not file any process in court. The learned Attorney-General contended that the traditional role of the Respondent in law is to support the judgment. Cited in aid is ANAMBRA STATE GOVERNMENT & ANOR V. ANAMBRA STATE HOUSE OF ASSEMBLY & 18 ORS (2013) 3 NWLR (PT.1341) 236 at 249 PARAS G & H. Learned counsel for the 4th, 9th and 13th Respondents similarly aligned himself with the submission of the learned Attorney-General as regards the failure of 5th and 7th Respondents to file Notice of Cross-Appeal or Respondent’s Notice. That the brief can be properly characterized as an addendum to the Appellant’s brief of argument. He relied on the case of ADEFULU v. OYESHILE (1989) 5 NWLR (pt.122) 372 at 417.
In response to the submission of the learned Attorney-General and counsel to 4th, 9th and 13th Respondents, learned counsel for the 5th and 7th Respondents contended that they are not entitled to challenge the propriety of their brief orally. That they should have notified them by filing notice of preliminary objection as required by Order 10 Rule 1 of the Court of Appeal Rules 2011. He urged the court not to foreclose them. Since the 5th and 7th Respondents’ brief of argument was only served on them on the date of hearing of the appeal, it is my considered view that raising the point of law orally would suffice in the circumstances of the case, since time is of essence.
I have examined the 5th and 7th Respondents’ brief of argument.
The brief contained two issues for determination. I have earlier in this judgment summarized the learned counsel’s submission. It is evident from the record that 5th and 7th Respondents did not file Notice of appeal, cross-appeal or Respondent’s notice against the judgment of the trial court. In other words, only the appellant was dissatisfied with the judgment. Therefore, it is my respectful view and I entirely agree with the views of the learned Attorney-General and Mr. Olanipekun that not having filed an appeal or cross-appeal in this matter, Mr. Babaleye, counsel to the 5th and 7th Respondents has no right to attack or challenge the said judgment of the trial court. Therefore, whatever was said by them in their brief of argument challenging the judgment goes to no issue, at all. I intend to discountenance the submission by counsel to the 5th and 7th Respondents.In OBASANJO V. BUHARI (2003) 17 NWLR (PT.850) 510 AT 554-855 the apex court clearly spelt out the traditional role of a respondent in an appeal. His Lordship, Kalgo, JSC, faced with a similar situation had this to say:
“The traditional role of a respondent in an appeal, is to defend the judgment or ruling appealed against, if, however, a respondent wishes to depart from this role, by attacking or challenging the judgment or ruling in anyway, he or she is enjoined to file a cross-appeal since the main purpose of a cross-appeal is to cored an error which is standing in the way of a respondent in the main appeal. See ADEFULU v. OYESILE (1989) 5 NWLR (PT.122) 377, ELIOCHIM NIG. LTD. V. MBADIWE (1986) 1 NWLR (PT.14) 47, LAGOS CITY COUNCIL V. AJAYI, 1970 1 ALL NLR 291; AFRICAN CONTINENTAL SEEWAYS LTD. V. NIGERIAN DREDGING ROADS & GENERAL WORKS LTD. (1977) 5 SC 235 AT 247.”
Having failed to file a cross-appeal or respondent’s notice, 5th and 7th Respondents’ counsel cannot be allowed to play the role of an appellant. He is not competent to do so and I so hold. I will discountenance the submissions advanced in respect of the two issues raised for determination in this appeal by the 5th and 7th respondents.
In resolving the issues, I will combine issues 1 and 2 raised by the appellant while issue 3 will be treated separately. I have considered the submissions of all Counsel and the authorities cited.
The crux or fulcrum of this appeal is the interpretation of Section 68(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria as amended, read along with Section 222 of the same Constitution and other relevant provisions of the constitution referred to by the parties.
For ease of reference, I will reproduce the said Sections hereunder:
“Section 68(1)(g) Provides:
(1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if –
(a)—
(b)—
(c)—
(d)—
(e)—
(f)—
(g) Being a person whose election to the House was sponsored by one political party, he becomes a member of any other political party, before the expiration of the period for which that House was elected:
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or merger of two or more political parties or functions by one of which he was previously sponsored.”
Section 222 also reads:
“No association by whatever named called shall function as a political party, unless –
(a) The names and addresses of its national officers are registered with the Independent National Electoral Commission;
(b) The membership of the association is open to every citizen of Nigeria irrespective of his place of Origin, circumstances of birth, sex, religion or ethnic grouping;
(c) A copy of its Constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission;
(d) Any alteration in its registered Constitution is also registered in the principal office of the Independent National Electoral Commission within 30 days of the making of the alteration;
(e) The name of the association, its symbol or logo, does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part of the geographical area of Nigeria; and
(f) The headquarters of the association is situate in the Federal Capital Territory, Abuja.”
The guidelines to be observed in the interpretation of statutes, most especially our Constitution are stated by Obaseki, JSC, in the case of A.G OF BENDEL STATE V. A.G. OF THE FEDERATION AND ORS (1981) 10 SC 1 AT 132, 134 (1982) 3 NCLR 1 AT 77 as follows: –
“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind: –
(1) Effect should be given to every word.
(2) A construction nullifying a specific clause will not be given to the constitution unless absolutely required by the context.
(3) A constitutional power cannot be used by way of condition to attain constitutional result.
(4) The language of the constitution where clear and unambiguous must be given its plain evident meaning.
(5) The constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety: a particular provision cannot be dissevered from the rest of the constitution.
(6) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller-import to its meaning.
(7) A constitutional provision should not be construed so as to defeat its evident purpose.
(8) Under the Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
(9) Delegation by the National Assembly of its essential legislative function is precluded by the constitution (Section 58(4) and section 4(1).
(10) Words are the common signs that mankind make use of to declare their intentions plainly, there is no need to have recourse to other means of interpretation of such words.
(11) The principles upon which the constitution was established rather than the direct operation or lateral meaning of the words used should measure the purpose and scope of its provisions.
(12) Words of the Constitution are therefore, not to be read with stultifying narrowness.
See: MARTIN V. HUNTER 1 WHEAT 304, 4L, ED, 97; COOPER V. TELFAIR 4 DAL 14. IL ED. 721; UNITED STATES V. LELKOWITZ 285, US 452, 52 SC 420, 761 L. ED.877; UNITED STATES VS. CLASSIC 213, US 299, 61 SCT 1031, 85 L. ED. 1368; LAKE COUNTY V. ROLLINGS 130 US 662 95, CI 651; FAIRBANK V. UNITED STATES 181 US 283, 21 S. CT, 648, 45L. ED. 862, UNITED STATES V. SHARPNACK 355 US 286, 783, CT 291; WESTERN BANK LTD. V. SCHINDLER (1977) 1 CH 1 AT 13; LUKE V. INLAND REVENUE COMMISSIONERS (1963) AC 577 AT 577 (SIC); IN RE MARYON WILLIAM’S WILL TRUSTS (1968) CH 268, 262.

In the interpretation or construction of the relevant provisions of the 1999 constitution needed for the determination of this appeal, I will be guided by the principles of law as enunciated by the apex court in the cases cited supra as well as others.
In construing Section 68(1)(g) in the light of the aforementioned judicial guidelines, it is self-evident that the said Section implies the following: –
(i) A member of the House of Representatives is sponsored by a political party to that legislative house.
(ii) A member of the House of Representatives who is so sponsored, automatically vacates his seat if he becomes a member of another political party before the expiration of the lifespan of the House of Representatives for which he was elected.
(iii) A decampee legislator would escape the consequence in (ii) (Supra), if his membership of another political party is as a result of division in the sponsoring party or merger of the sponsoring political party or a faction thereof.
It seems to me that the basic aim of the paragraph is to forestall the erstwhile common phenomenon in our various legislatures, changing their party and joining another party in the legislature, which is popularly known as carpet-crossing. The penalty for a member changing his party and becoming member of another party is to vacate his seat in the legislature.
The proviso to Section 68(1)(g) of the 1999 Constitution set out three circumstances which are disjunctive under which a Senator or House of Representative member, who has changed his former political party that sponsored him into office, for another, while, still in office to escape the mischief of having to lose his seat in the Senate, in the case of a Senator, or House of Representatives in case of House of Representatives member.

There is no dispute as to the fact that appellant was sponsored to the House of Representative by the Labour Party. From the processes filed by the appellant at the lower court, he positively asserted that he has dumped the Labour Party. It is therefore without doubt that appellant who was sponsored by a political party has now become a member of another political party before the expiration of a period for which he was elected to the House. Appellant relied on the proviso to justify his defection from Labour Party to APC. Appellant has tried to locate his circumstances under the proviso by relying on division in the sponsoring political party. The question now is whether appellant has successfully established that there was division in Labour Party when he defected to APC? The appellant in his brief of argument maintained that at the time he defected there was crisis in the Labour Party, Ondo State Branch. He also contended that the lower court made a finding to the effect that there was crisis in Ondo State branch of Labour Party. That respondents did not appeal against the said finding. The respondents with the exception of 5th and 7th, argued that a division within a local branch which does not affect the single corporate and national entity of the political party, cannot be Within the contemplation of the phrase ‘division in the political party’ contemplated in the proviso of Section 68(1) (g) of the Constitution.
At the lower court Appellant relied on the affidavit in support of the originating summons and some Exhibits to show that there was division in Ondo State Labour Party. The six paragraph affidavit sworn to by one Funmilayo showed that the alleged crisis relates to the post of Chairmanship in Ondo State chapter of the Party. Appellant relied on suit filed in Federal High Court, Akure No: FHC/AK/CS/01/2012, by Chairman of the State Chapter and Suit No: FHC/AK/CS/02/2012 to show that there was crisis in the local government chapter. The third Suit No: FHC/AK/CS/03/2012 was filed by the Appellant.
The 1st – 3rd Respondents in their counter-affidavit filed in support of the counter-claim, maintained that there was no crisis in Ondo State branch of the Labour Party. They attached Guardian News paper and Compass News Paper which reported that there was no division within Labour Party. The News Papers were Exhibited and marked Exhibits A and B. They also attached a letter marked Exhibit C. The Acting Director Legal Services, Abuja (INEC) also confirmed in a letter that there was no division in Labour Party. The letter was marked Exhibit D. The affidavit evidence placed before the court showed that the tussle for offices resulted into series of litigations.
This in my humble view is not sufficient to conclude that there was division within the Party. However, the learned trial Judge after evaluating the affidavit evidence made a specific finding of fact that there was division within the Ondo State Chapter of the Labour Party.
Appellant also relied on the said finding to contend that Respondents who did not cross-appeal cannot challenge the finding in their respective submissions. The learned trial Judge’s finding is at page 268 of the record, wherein he said: –
“Having reasoned and held that the defection of the 1st defendant to the counter-claim is contrary to the Section 68(1)(a) and (g) of the Constitution it stands to reason that his originating summons has failed as the division or factionalization, crisis, bedeviling Labour Party is only limited to Ondo State hence the Resident Electoral Commission in the Guardian Newspaper of 30th December, 2011 said thus:
“The Commissioner is not aware of any division in Labour Party. The Daily Watch of 15th December, 2011 read: 2 Labour Party Chairmen emerged in Ondo State as Odidi faction headed for Court.”
The article in the said 15th December, 2011 of the News Watch said and I quote in part: –
“The intra party crisis in the ruling Labour Party took another dimension.
This also showed the alleged crisis in Ondo State is within and does not qualify for the defection of the plaintiff herein. I so hold.”
As rightly observed by the Appellant, none of the Respondents filed a cross-appeal against the said finding referred to (Supra).

The finding of fact and the holding stands rightly or wrongly. I will therefore not belabour the issue. What is left for this court to determine is whether the alleged division within Ondo State Labour Party qualifies for defection of the plaintiff/appellant, to another party.
The question now is: What is the nature of the ‘Division’ envisaged by Section 68(1)(g) of the Constitution that would entitle a defector to escape punishment. Is it a division in the Political Party that affects the whole structure of the party or division that only affects a State chapter or Local Government? In answering this poser, I have to apply the principles of interpretation by ascertaining the intention of the lawmakers from the words used by them. The principle of “Whole statute constitution” is also important in the construction of a document as the Constitution so as to give effect to the statute; and the principle is amply underscored in ATTORNEY-GENERAL, BENDEL STATE V. ATTORNEY-GENERAL, LAGOS STATE (SUPRA).
The word ‘Political Party’ has been defined under Section 229 of the 1999 Constitution to mean “any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor, or membership of a legislative house or a local government council”. The Electoral Act, 2010 as amended also defined ‘Political Party’ under Section 156 to include any association of persons whose activities includes canvassing for votes in support of a candidate for election under this Act and registered by the commission.

For a political party to function, the name and address of the national officers must be registered with Independent National Electoral Commission. Section 222 of the Constitution set out the conditions upon which an association can function as a political party. Section 222 is therefore about conditions for eligibility of an association to engage in the activities that by virtue of Section 221 only political parties can engage in as specified in Section 229.
There is one political party recognized by the Electoral Act and by implication the Constitution. A political party is registered as one corporate entity and recognized by the Electoral Act and the Constitution. The 4th, 9th and 13th Respondents’ counsel had contended that it is deducible from the definition of political party that the organization which the Constitution reckons with as a political party is the association registered with the Independent National Electoral Commission. According to counsel, divisions that do not affect the whole structure of the party would not qualify as an exception under Section 68(1)(g) of the Constitution. I agree with the submission of both learned counsel for the 4th, 9th and 13th Respondents, as well as the learned Attorney-General that Section 68(1)(g) contemplates division that will inflict the party at the centre and not division at State or Local Government level. A community leading of Sections 221, 222, 229 of the Constitution as well as Section 80 of the Electoral Act, clearly shows that, the division envisaged by Section 68(1)(g) of the Constitution refers to division in the party at the top or centre not division at the State or Local Government level as contended by the appellant. For ease of reference the sections referred to Supra are reproduced thus: “I have earlier reproduced Section 222(a)(e) and (f). Section 221 read thus:
‘No association other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election. Section 80 of the Electoral Act 2010 also provides: ‘A Political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name”. Since a political party is recognized as one corporate entity, division must be one that affects the entire structure of the political party at the centre, i.e., the national leadership of the party. A political party has to be looked at as a whole and not in piecemeal. The intention of the lawmakers is to punish defectors. If the provision of Section 68(1)(g) of the Constitution is interpreted as proffered by the appellant then the purpose for which the Section was introduced would be defeated. There will be no end to defection by members.
As earlier noted in construing the provision of Section 68(1)(g) one has to adopt the interpretation that would not defeat the intention of lawmakers. See UZOUKWU V. EZEONU II (1991) 6 NWLR (PT.200) 708 AT 763 PARAS B-C wherein His Lordship Nasir, PCA, stated thus:
“By its very nature a Constitution must always be construed in such a way that it protects what it sets out to protect or guides what it sets out to guide. A Constitution therefore must by necessity be interpreted broadly in order not to defeat the, clear intention of its framers.”
The case of FEDERAL ELECTORAL COMMISSION V. GONI (1983) LPELR – 1266 is a classical example of the type of division envisaged by Section 68(1)(g) of the 1999 Constitution. In that case, His Lordship, Aniagolu, JSC who wrote the lead judgment adopted the background facts summarized by the Federal Court of Appeal in his Judgment as follows: –
“1. Alhaji Mohammed Goni (hereinafter called the 1st Respondent) was elected as the Governor of Borno State in the 1979 general elections on the platform of the Great Nigeria Peoples Party (hereinafter called the G.N.P.P).
2. The 1st Respondent became a member of the Unity Party of Nigeria (hereinafter called the U.P.N) before the expiration of his term of office as Governor.
3. Following disagreement within the G.N.P.P, the Party split into two factions, the one led by Alhaji Waziri Ibrahim and which was subsequently recognized by the Federal Electoral Commission, the appellant (hereinafter called FEDECO) and the other led by Dr. Shettima Mustapha, the faction to which the 1st Respondent belonged.
4. The Shettima Mustapha faction does not recognize the national officers and governing body of the G.N.P.P as registered with FEDECO and has appointed its own national officers and governing body.
5. The Shettima Mustapha faction held separate meetings but subsequently broke into two further groups or factions. One group or faction, of which the 1s respondent was a prominent member, was in favour 1st merging with the U.P.N. The .other group, headed by Shettima Mustapha subsequently merged with the Nigerian Peoples Party (hereinafter called the N.P.P).
6. The members of the pro U.P.N group of the Shettima faction joined up with the U.P.N en masse. And so it was that original Great Nigeria Peoples Party (hereinafter called G.N.P.P.) broke up into factions, namely: –
(i). The Ibrahim Waziri faction and (ii) Shettima Mustapha faction. Governor Goni was a member of the Mustapha faction, later the Dr. Shettima Mustapha faction broke into a further two namely: –
(a) The Governor Goni sub-faction.
(b) The Dr, Mustapha Sub-faction.
It would therefore be right to say that the original G.N.P.P had fragmented itself into the original two factions and later into four by the further sub-division of one faction into two sub-factions.
It was a process of disintegration of the original G.N.P.P, first by a bifurcation and later by a quarternity.”
The main issue for determination before the Federal Court of Appeal from which this appeal emanated was whether or not FEDECO was right in holding that the 1st Respondent was rightly disqualified from contesting for the office of Governor of Borno State on the platform of the U.P.N by reason of Section 166 of the 1979 Constitution read together with Section 64(1)(g). The Federal Court of Appeal in its judgment held that there was division in the G.N.P.P which resulted in Governor Goni joining the U.P.N, as such, he was covered by the proviso to paragraph (g) of Section 64(1) of the 1979 Constitution. I wish to note that Section 64(1)(g) of the 1979 Constitution is in pari materia with Section 68(1)(g) of the 1999 Constitution under consideration. Agreeing with the decision arrived at by the Federal Court of Appeal, His Lordship had this to say:-
“I would agree with the conclusion of the Federal Court of Appeal, that, in the ultimate, it was the division of the G.N.P.P into Waziri faction and Dr. Mustapha faction which resulted in the merger of the Governor Goni faction with the U.P.N. Under Section 64(1)(g) of the Constitution where a person whose election to the legislative house was sponsored by a political party; becomes a member of another political party before the expiration of the period for which that house was elected he would have to lose his seat in that house.
But under the proviso to the said Section 64(1)(g), if his membership of the new political party occurred because –
(i) THERE WAS A DIVISION in the political party which sponsored him and as a result,
(a) He joined the new political party
(b) he and his dissidents or faction joined the new political party; OR
(ii) THERE WAS A MERGER of two or more political parties with –
(a) The political party which sponsored him.
(b) His own faction of the divided political party which sponsored him, he does not lose his seat.
It is all agreed in this appeal that there was a division. Under the sub-section, the political party, was the one which originally sponsored the election. Under the sub-section, there could be a merger without a split leading to a merger. Each case falls within the exception.
The mischief which the framers of the Constitution wanted to avoid was carpet-crossing which, from our constitutional history, in the not distant past, had bedeviled the political morality of this country. They had however to allow for a situation where a political party, by reason of internal squabbles, had split into one or more factions. A split or division could arise without any fault of the members of a political party, resulting in a member rightly or wrongly finding himself in a minority group which may not be big enough, or strong enough to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost. Such a situation is entirely different from the fraudulent and malevolent practice of cross-carpeting politicians of yesteryears, who, for financial consideration or otherwise, crossed from one political party to another, without qualms and without conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.”
I find this case very relevant and instructive. The case of FEDECO V. GONI (SUPRA) clearly showed that the division envisaged by Section 68(1)(g) must be one that affects the whole structure of the political party, i.e., a party splitting into two factions or more. It must be a serious division not the type of division relied upon by the appellant. The National Officers of the Party must be involved.
From all what I have said, it is my humble view that the learned trial Judge rightly concluded that the alleged division within the Labour Party in Ondo State alluded to by the appellant was not within the contemplation of the drafters of the 1999 Constitution to warrant the defection of the appellant. Appellant cannot therefore take advantage of the proviso to Section 68(1)(g) of the 1999 Constitution since there was no division within the Labour Party in the manner envisaged by the Constitution to warrant Appellant’s defection to another political party that sponsored and provided him the platform to contest the seat of Akure North/South Federal Constituency at the House of Representatives. Appellant has violated the provisions of Section 68(1)(g) of the 1999 Constitution. The consequence is that appellant has to mandatorily vacate his seat as member in the House of Representatives. The case of A.G. FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT.1041) 1 AT 178 is relevant and instructive on this issue. The apex court per Aderemi, JSC at page 178 stated thus:
“Members of the Senate and House of Representatives were elected by the people as were the President. Applying the well known principles of interpretation to the above provision of the Constitution, I have no doubt in my mind that the legislators have made it manifest that if any of these elective members after winning an election on the platform of a political party, later, on being a member of the Senate or of the House of Representatives, defects to another political party he is deemed, in law, to have automatically vacated his seat in the House of which he is a member. No other interpretation can be given to the above provision. A similar provision was fashioned out for members of the State House of Assembly, Section 109(1)(g) of the Constitution which is the relevant provision.” His Lordship further stated: –
“It is manifest from the above quoted constitutional provisions that the lawmakers intended to and indeed made punishable the defection of an elected member, from the political party that sponsored him, to another political party before the expiration of the period for which the House was elected by declaring his seat vacant. No similar provision was made for the Vice-President or even for the President.”
Consequently, issues 1 and 2 are resolved in favour of the Respondents.
Under issue 3, the question to be resolved is: whether the trial court was right to have concluded that it is a political party that defects where a member of a political party defects to another political party. Learned counsel for the appellant had contended that the political party and its members or candidates are two separate and distinct entities. Cited in aid is the case of OBASANJO V. BUHARI (2003) 17 NWLR (PT.850) 570 AT 563. It was his contention that the learned trial Judge was wrong by holding that it is a political party that defects into another party. On the part of the 1st – 3rd, 4th, 9th and 13th and then 6th, 8th and 10th Respondents the inclusion of the words “or defects” in line 5 of the Judgment of the lower court, at page 336 of the Record is a slip.
The law is settled that it is not every error in the Judgment of a court that will lead to the said decision being set aside.

Respondents urged the court not to set aside the decision as the error is not shown to be substantial and no miscarriage of justice has been occasioned.
The excerpt from the judgment of the trial court made on 30th May, 2012 as contained on page 336 of the record of appeal reads: –
“Having reproduced the Sections of the law retied upon, I find as facts – that the plaintiff has an identification card of the Labour Party signed by the National Chairman and National Secretary of the Labour Party which address is at Abuja, which shows that it is not the candidate that wins, loses or defects but the party which I have said the Headquarters is in Abuja.”
I agree with the submission of Appellant’s counsel that a registered political party is a body corporate and a legal entity which can sue and be sued. A political party and its members are not one and the same. The Supreme Court in OBASANJO AND BUHARI cited (Supra) had cause to distinguish between the two persons and puts the law succinctly thus: –
“By virtue of Section 70 of the Electoral Act, 2002, a registered political party is a body corporate and a legal entity which can sue or be sued. Thus, a political party and its members are not one and the same. The law gives them Independent recognition and rights.”
In his concurring judgment, Edozie, JSC on page 585 of the law report also had this to say:-
“With due respect to the learned senior counsel for the appellant, there is nothing in the above passage to suggest that the court below decided that a political party can be deemed to be one and the same person. They are mutually exclusive entities. One is a natural person, the other is an artificial body.”
The question now is: What is the effect of the error or slip discovered in the judgment. There is no dispute as to the fact that the inclusion of the words “or defects” in line 5 of the Judgment of the lower court at page 336 of the record is an error since political party cannot defect.

The law is settled that it is not every error in the judgment of a court that will lead to the said decision being set aside. In ODUKWE v. OGUNBIYI (1998) 8 NWLR (pt.561) 339 AT 350, the Supreme Court held as follows:
“It ought to be borne in mind that it is not each and every mistake or error in a judgment that necessarily determines an appeal in favour of an appellant or automatically results in the appeal being allowed. It is only when the error is so substantial that it has occasioned a miscarriage of justice that the appellate court is bound to interfere.”
Also in ANYAWU V. MBARA (1992) 1 NACRP 85 AT 97 PARAS D-E wherein the Supreme Court held: –
“It is the law, however that the fact that a party has established an error in the proceeding does not necessarily mean that the appeal must be allowed. Such an error will be a ground for allowing the appeal, if and only if it is substantial in the sense that if he (trial Judge) had directed himself correctly, he would have reached a different decision.”
In a further related case of OLADEJO ADEWUYI v. FADEKE AKANNI & 10 ORS (1993) 9 NWLR (pt.316) 182 AT 205, per Iguh, JSC, restated the point in the following words:
“In this regard, it must be emphasized that it is not every error of law that is committed by a trial or appellate court that justifies the reversal of judgment. An appellant to secure the reversal of a judgment, must further establish that the error of law complained of did in fad occasioned a miscarriage of justice and/or substantially affected the result of the decision. See OLUBODE V. SALAMI (1985) 2 NWLR (PT.7) 232. An error in law which has occasioned no miscarriage of justice is immaterial and may not affect the final decision of a court. This is because what an Appeal Court has to decide is whether the decision of the trial Judge was right and not whether his reasons were, and a misdirection that does not occasion injustice is immaterial.”
See also OJE v. BABALOLA (1991) 4 NWLR (pt.185) 267 AT 282; GWONTO V. STATE (1983) 1 SCBLR 142, 152; ABUBAKAR V. BEBEJI OIL AND APPLIED PRODUCTS LTD. (2001) 2 SCNJ 170 AT 205; MILITARY GOVERNOR OF ONDO STATE & ORS V. KOLAWOLE & ORS (2005) 5 SCNJ 37 and CHUKWUMA (AKA DODDY) V. THE FEDERAL REPUBLIC OF NIGERIA (2011) 5 SCNJ 40 AT 67.
Those inclusions are harmless and do not derogate from the correctness of the judgment of the lower court. Even if this court sets aside the error in the decision that a political party does not defect, not only will it not confer any benefit on the appellant, it will also not lead to the setting aside of the judgment. Even where a court gave wrong reasons for his decision once the conclusion is correct, same will not be set aside. In I.T.P.P LTD. v. UNION BANK NIG. PLC. (2006) 5 SC (PT. 11) 52 AT 62, the apex court made it clear that: –
“An appellate court looks and bases its decision at the correctness of the decision. In other words, an appellate court will not set aside the decision of a lower court which is right and just, merely because the trial Judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision was right and not necessarily whether the reasons are right.” See: SOWUMI v. ALHAJI SOMS AND ORS (1982) 17 ANLR (PT. 1) 19; UNITED BALFER AFRICA LTD. & ANOR V. MRS. NGOZI ASHARU (1990) 9-10 SC 115.

Appellant did not show that the error has occasioned any miscarriage of justice. It is my humble view that the learned trial Judge rightly dismissed the originating summons and granted the 1st – 3rd Respondents counter-claim.
Finally, I will now consider the argument canvassed by learned counsel for the 4th, 9th and 13th Respondents in their brief of argument concerning the competency of the principal declaratory relief sought by the appellant. Learned counsel contended that the relief is ungrantable. Learned counsel challenged the manner, wordings and style the relief is couched. He cited in aid the case of UZOUKWU V. EZEONU II SUPRA.
In response, learned counsel for the appellant contended in the reply on point of law that the Respondents are not allowed to formulate issue which did not arise from the ruling/judgment or the ground of appeal filed by the appellant. It was contended that none of the appellant’s grounds of appeal borders on the manner, wordings or style the relief is couched. On the essence and content of 4th, 9th and 13th Respondents’ brief, counsel relied on NEPA v. OLAGUNJU (2005) 3 NWLR (PT.913) 602; and ATANDA v. AJANI (1989) 3 NWLR (PT.111) 511.
I have examined the grounds of appeal filed by the appellant as well as the issues formulated therefrom.
I agree with the submission of learned counsel for the appellant that the issue raised by the 4th, 9th and 13th Respondents relating to the principal relief did not arise from the grounds of appeal or the judgment appealed against. It is settled that Respondent is not allowed to formulate issues outside the grounds of appeal filed by the appellant. The only exception is where the respondent files a cross-appeal or Respondent’s Notice which is not the case here.

The case of NEPA V. OLAGUNJU cited (Supra) by appellant’s counsel is relevant. I will without much ado discountenance the argument proffered by counsel to the 4th, 9th and 13th Respondents on the appellant’s reliefs.
For the various reasons stated hereinabove, I hold that this appeal is unmeritorious and same is accordingly dismissed. The judgment of Federal High Court, Akure, delivered on 30th May, 2012 by Okeke, J. is hereby affirmed. Parties to bear their own costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: The Appellant (Plaintiff before the lower court) commenced the instant case by way of Originating Summons in which the lone question re-produced hereunder was posed for the determination of the lower court: –
“(1) whether or not in view of the provisions of section 68(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the imbroglio, division, crisis, fractionalization, centrifugal tendencies, hurly burly and the brouhaha bedeviling the Labour Party in Ondo State the plaintiff/applicant is not entitled to dump the party (Labour Party) for another party.
And the reliefs which the Appellant seek are: –
A DECLARATION that under and by virtue of the proviso to section 68(1)(g) of the constitution of the Federal Republic of Nigeria, 1999 as (as amended) and the current imbroglio, division, crisis, fractionalization, centrifugal tendencies, hurly burly and the brouhaha bedeviling the Labour Party in Ondo State the plaintiff/applicant is entitled to dump the party (Labour Party) for another party and, as such, is on a tera firma to have dumped the Labour Party for the Action Congress of Nigeria.
(2) A PERPETUAL ORDER OF INJUNCTION restraining the defendants from taking any step whatsoever or howsoever described about, concerning or pertaining to the defection of the plaintiff as honourable member in the Federal House of Representatives for Akure North/south Federal constituency from Labour Party (LP) to the Action congress of Nigeria (ACN).”

The 6th, 7th, 8th and 10th Respondents filed a Notice of Preliminary Objection to the Originating Summons on 21/2/2012. The 4th, 9th, and 13th Respondents on 27/2/2012 filed a counter-affidavit in response to the supporting affidavit to the Originating Summons. On the same date these Respondents also filed a counter-claim against the Appellant. The 1st-3rd Respondents on 2/3/2012 filed a counter affidavit to the supporting affidavit of the Originating Summons and also filed on the same date a Notice of Counter-Claim against the Appellant; and 11th and 12th Respondents respectively. The Notice of Counter-Claim was accompanied by a supporting affidavit. The 6th, 7th, 8th and 10th Respondents on 29/2/2012 withdrew the Notice of Preliminary Objection they filed in the case on 21/1/2012. The lower court duly struck out the said Notice of Preliminary Objection on the date it was withdrawn.
The notes of proceedings of the lower court in the instant case span pages 258 – 269 of the records. Pages 263 – 269 particularly show that it was on 26/4/2012 that the lower court entertained the instant matter. Ayo Ogundeji appeared for the Appellant. He held the brief of Kola Olawoye. Eyitayo Jegede SAN, learned Attorney-General, Ondo State leading five other Law Officers appeared for the 1st-3rd Respondents/Counter-Claimants. Bode Olanipekun leading two other learned counsel appeared for the 4th, 9th, and 13th Respondents/Counter-Claimants. Damilola Aladedutire appeared for the 6th – 8th and 10th Respondents. All learned counsel as hereinbefore identified adopted and relied on the written addresses filed on behalf of their respective clients in aid of their positions in the case. It is appropriate to note in this regard, that the position of both learned A-G, for the 1st – 3rd Respondents/Counter-Claimants, and Bode Olanipekun for the 4th, 9th and 13th Respondents/Counter-Claimants before the lower court was that the said court should dismiss the Originating Summons and grant their respective counter-claims. Damilola Aladedulure for the 6th – 8th and 1Oth Respondents also urged the lower court to dismiss the Originating Summons and indeed associated himself with all the submissions made by learned A-G for the 1st – 3rd Respondents. Learned counsel for the Appellant withdrew the suit against the 12th Defendant – INEC at the hearing of the matter on 26/4/2012 and the party was duly struck out as a party in the case on the said date. He thereafter argued his case and urged the lower court to grant the Appellants the reliefs which he sought. Suffice it to say that the lower court in its judgment delivered on 30/5/2012 found the Originating Summons of the Appellant to fail and held that the counter-claims succeeded.
Being aggrieved with the judgment of the lower court the Appellant lodged an appeal against the same by a Notice of Appeal dated 26/6/2012 and filed on the same date. The Notice of Appeal contains 10 grounds of appeal. The reliefs which the Appellant seeks from this Court are: (1) An Order setting aside the judgment of the learned trial Judge dismissing the Originating Summons; and (2) An Order dismissing the two counter-claims of the 1st – 3rd and 13th Respondent respectively having not been proved.
The Briefs of Argument of parties to the appeal and which they adopted and relied upon in aid of their respective positions have been adequately identified in the lead judgment. It has earlier been stated that the 6th – 8th and 10th Respondents filed on 21/2/2012 a Notice of Preliminary Objection dated 20/2/2012 to the Appellants’ case and therein urged the court to dismiss or strike out the suit in its entirety. See pages 16 – 23 of the records. As already stated the Notice of Preliminary Objection was however withdrawn and duly struck out by the lower court. The joint written address of the 6th – 8th and 10th Respondents in opposition to the Originating Summons is on pages 249 -253 of the records. Therein and at page 252 in particular, these Respondents urged the lower court to dismiss all the Appellant’s claims and to grant the counter-claim in the case. The 5th Respondent it would appear from the records did not participate in the matter before the lower court. Whether or not the 5th Respondent contested the case and the lower court having found the Originating Summons to fail, the implication of this in my considered view is that the judgment in the case inured in favour of all the Respondents in the case including the 5th Respondent. The situation in the case therefore is that the judgment of the lower court in the Appellant’s case inured in favour of all the Respondents therein while the judgment in the counter-claims inasmuch as it favoured the counter-claimants equally inured in favour of the 1st – 3rd, and 4th, 9th and 13th Respondents respectively who made the counter-claims.
At the hearing of the appeal, the 5tn Respondent who never participated at the hearing of the case; and the 7th Respondent were not only represented by one Babaleye of counsel but the said counsel filed, adopted and relied on a Brief of Argument in which he urged this Court to allow the appeal on behalf of the said 5th and 7th Respondents. It is to be noted that the 7th Respondent was one of the parties for whom Aladedutire of counsel appeared at the hearing before the lower court (and who together with the 6th, 8th and 10th Respondents all urged the lower court to dismiss the originating Summons).
Law reports are replete with decisions of the appellate courts of this country namely Supreme Court and this Court that clearly state that the traditional role of a respondent is to defend the judgment appealed against. This no doubt is because such judgment inures enure for the benefit of the respondent. This is not to say that a defendant who becomes a respondent in appeal cannot be aggrieved with the judgment of a court and therefore would not want to defend such a judgment that he believes he does not merit. Especially, where such a Respondent was introduced into the case as a “Trojan horse” as it were, i.e. to admit or support the case of his adversary. Such a defendant/respondent would appear to have no choice but to appeal against the judgment of the court before he can be heard to urge this Court to allow an appeal.
An appeal is the constitutional means by which the judgment of a court can be upturned. Therefore, a party who has no complaint against the judgment of a court cannot be heard to urge that the judgment he has not appealed against should be upturned or allowed. Hence the position of the law that the traditional role of a respondent is to defend the judgment appealed against.
It is therefore obvious that what learned counsel for the 5th and 7th Respondent has done in the instant appeal as it relates to the 5th Respondent is not permissible in law. As for the 7th Respondent, it is beyond doubt that this particular party having argued before the lower court that the case of the Appellant be dismissed and which was clearly what the lower court did, cannot turn round on appeal to argue the opposite of his earlier stance. An appeal having regard to the settled position of the law is a continuation of the original case even though it must necessarily bear a new suit number. Thus, a party is not allowed on appeal to take a position contrary to the one he took in the case before the court from which the appeal emanates. It is thus, obvious that what learned counsel for the 5th and 7th Respondent has done in the instant appeal by filing a Brief of Argument wherein he has urged the Court to allow the appeal is against every known position of the law.
I think it’s high time learned counsel showed in whatever they do that they understand and appreciate the rudiments of law applicable to matters which they handle in court. This will be to the credit of learned counsel as it will portray the counsel as really learned. Learned counsel should for no untoward reason give the impression to their clients that the decision of a court can be reversed at the instant of such client without an appeal. It makes mockery of the noble profession of law if counsel for the purpose of satisfying his client’s desire simply file processes in court in the knowledge that nothing positive would be aggrieved by such process, a counsel who does this also puts his own prowess of law into doubt. Flowing from all that I have said is that tire Brief of Argument for the 5th and 7th Respondents is not worth the paper on which it has been presented. It is unfortunate that learned counsel filed such a brief of Argument in the instant appeal. It would have been better if the 5th and 7th Respondents simply kept away from the proceedings or borrowed a clue from learned counsel who represented INEC. I will therefore discountenance the Brief of Argument filed by the 5th and 7th Respondents for the purposes of the instant appeal.
My lord has dealt elaborately, with the merits of the instant appeal in the lead judgment. I do not think I can improve on the interpretation my lord has given to the relevant provisions of the amended 1999 Constitution dealing with political party. In the light of the Goni case cited in the lead judgment, I therefore cannot but agree with my lord and by necessary implication the lower court that the Appellant on the facts he placed before the lower failed woefully to establish that there was a division in the Labour Party which sponsored his election into the Federal House of Representatives to warrant his defection from the said party to the Action Congress of Nigeria when he did.
In the light of all that has been said and for the fuller reasons in the lead judgment, I too find the instant appeal to be totally lacking in merit and dismiss same. The judgment of the lower court dismissing the Appellant’s Originating Summons and granting the reliefs sought in the counter-claims is affirmed.
I also abide by the order relating to costs as contained in the lead judgment.

JAMES SHEHU ABIRIYI, J.C.A.: The appellant took out an originating summons claiming inter alia against the respondents for a declaration that by virtue of section 68 (1) (g) of the 1999 Constitution FRN (as amended) he is entitled to “dump” the Labour Party for another party and as such was on firm ground to have “dumped” the Labour Party for the Action congress of Nigeria.
An order of perpetual injunction restraining the respondents from taking any steps whatsoever or howsoever concerning his defection from the Labour Party to the Action Congress of Nigeria.
The 1st – 3rd Respondents and 13th Respondent counterclaimed against the appellant inter alia for a declaration that the Appellant immediately ceased to be a member of the House of Representatives upon defecting from the Labour Party which sponsored him and for orders directing the appellant to vacate the House of Representatives seat of Akure North/South Federal Constituency forthwith and for the Independent National Electoral Commission to immediately conduct a bye-election to fill the vacant seat.
The facts of the case are simple and short. The case of the appellant is that the Labour Party upon which he was elected was in crisis in Ondo State leading to the emergence of two members claiming the state chairmanship of the party. This left him with no option other than moving to a more organized party.
The defence of most of the respondents is that there was no crisis of any nature in the Labour Party in Ondo State and therefore no division or faction within the Party.
After due consideration of the affidavit evidence before it and addresses of learned counsel for all the parties the lower court dismissed the claim of the appellant and allowed the counterclaims.
It is against this judgment that the appellant has approached this Court upon ten grounds of appeal from which three issues were condensed.
1st – 3rd Respondents presented a lone issue for determination. 4th, 9th and 13th Respondents submitted one issue for determination. 5th and 7th Respondents formulated two issues for determination. The 6th, 8th and 10th respondents distilled one issue for determination.
Submissions and arguments of learned counsel for the parties are adequately captured in the lead judgment. I do not intend to duplicate efforts on this rather difficult exercise.
Section 68 (1) (g) of the Constitution FRN 1999 (as amended) around which this appeal revolves reproduced immediately hereunder reads as follows:
“68 (1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if………
(g) being a person whose election to the House was sponsored by one political party, he becomes a member of any other political party before the expiration of the period for which that House was elected:
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or a merger of two or more political parties or factions by one by one of which he was previously sponsored.”
In A. G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) I at 173 – 179 it is stated of defection thus:
“…. the law makers intended to and indeed have made punishable the defection of an elected member from the political party that sponsored him, to another political party before the expiration of the period for which the house was elected by declaring his seat vacant.”
It is not the duty of the Court to construe any provisions of the constitution so as to defeat the obvious ends the constitution was designed to serve. It is not the duty of the judge to interpret a statute to avoid its consequences.

Where the ordinary meaning of the words used in a provision are clear and unambiguous, effect must be given to the words used in the section without resorting to external aid. See Abubakar v. A.G. of the Federation (2007) 3 NWLR (Pt. 1022) 601 at 635 – 636, A.G. Abia State v. A.G. of the Federation (2005) 12 NWLR (Pt. 940) 452 at 503, Agwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367 at 437 and Awuse v. Odili (2003) 18 NWLR (Pt. 851) 116 at 152.
The main relief sought by the appellant at the Lower Court was for declaration that he was entitled to dump the Labour Party for another party. To be entitled to the declaratory relief the appellant must rely on the strength of his own case and not the weakness of the defence, if any. The burden of proof on the appellant in establishing his declaratory relief to the satisfaction of the Court is quite high and heavy in the sense that such declaratory relief is not granted even on admission by the respondents where the appellant fails to establish his entitlement to the declaration sought by his evidence. See Matanmi v. Dada (2013) 2 SCNJ 616 at 627, Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 378 and Nwodiku v. Okaru (2010) 3 NWLR (Pt. 1181) 362.
In the instant case on appeal to this Court the appellant hinged his defection on crisis within the party leading to two members claiming the chairmanship of the Ondo State chapter of the Labour Party which was a division entitling him to defect. Learned Counsel for the appellant has strenuously argued that the Lower Court found that there was a division.
He quoted a portion of the judgment of the Lower Court in support of his argument to this effect. With respect to the learned counsel for the appellant I do not agree that the Lower Court found that there was a division. The judgment of the Lower Court at page 284 of the record of appeal reproduced in part reads as follows:
“Having reproduced the section 68 (1) (a) and (g) I have also referred to exhibits C and D. Exhibit C is the letter written by the Resident Electoral Commissioner, Ondo State to the effect that there is no dispute in the Labour Party Ondo State and Exhibit D which also said that there is no division. This in my considered opinion means that the drafter of the constitution especially section 68 (1) (a) and (g) have a national out-look to parties including Labour Party meaning that what the plaintiff considers a dispute is not a dispute to warrant defection. I so hold.
He defected because he looked at section 68 (1) (a) and (g) and the proviso to it with myopic eyes.”
The Lower Court continued at page 284 – 285 of the record of appeal reproduced immediately hereunder as follows:
“In Exhibit A i.e. Guardian Newspaper of 30th December 2011 the Resident Electoral Commissioner said inter alia
‘…the Commission is not aware of any division in Labour party.’
He went further to say
‘We are not aware of any issue concerning factions in Labour party.’
It is clear from the foregoing that the appellant failed to show that there was a division in the Labour Party. On this ground alone the appeal ought to be dismissed.
Even if the appellant had proved that there was a division in the Labour Party in Ondo State that would surely have not entitled him to defect because political party referred to in section 68 (1) (g) of the constitution cannot be a State, Local Government, ward or village chapter of the party. See Sections 222 and 229 of the Constitution. See also the address of Learned Counsel for the appellant at page 16 where he stated thus:
“The Legal status of a political party entails its recognition as a whole structure and not in piecemeal.”
Surely this is an own goat and an admission against interest. See sections 20 and 22 of the Evidence Act. The division envisaged in section 68 (1) (g) of the constitution is a division of the party at the centre.
For this reason too the appeal should in my view be dismissed.
I read before now in draft the lead judgment of my learned brother A.G. Mshelia, JCA. He has exhaustively and adroitly dealt with the issues in this appeal. For the reasons ably demonstrated, I too dismiss this appeal and affirm the judgment of the Lower Court.
I abide by all the consequential orders made in the lead judgment.

FATIMA OMORO AKINBAMI J.C.A.: I have had the privilege of reading in advance, the lead judgment just delivered by my learned brother ADZIRA GANA MSHELIA, J.C.A. His Lordship has in his usual manner, painstakingly considered and resolved the issues in contention in this appeal. I agree with the reasoning and conclusion reached therein. However I wish to add a few words of mine for purpose of emphasis.
This appeal is against the judgment of the Federal High Court, Akure delivered on May, 30th 2012 by Hon. Justice G. C. Okeke.
The Appellant’s appeal raises fundamental questions regarding the Trial Court’s misinterpretation and misapplication of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2010.
The Appellant (as Plaintiff at the Trial Court) commenced this action vide an Originating Summons dated January 25th, 2012 and filed on January 26th, 2012 seeking declaratory and injunctive reliefs against the Respondents (“as Defendant at the Trial Court”). Specifically, the Appellant sought the following declaratory relief as contained on pages 2-3 of the Records of Appeal thus:-
“A Declaration that under and by virtue of the provision to Section 68 (1) (g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended and the current imbroglio, division, crisis factionalization, centrifugal tendencies, hurly-burly and the brouhaha bedeviling the, Labour Party in Ondo State, the Plaintiff/Applicant is entitled to dump the Party (Labour Party) for another Party and, as such, is on a tera firma to have dumped the Labour Party for the Action Congress of Nigeria”.
“A perpetual Order of Injunction restraining the Defendants from taking any steps whatsoever or howsoever described about, concerning or pertaining to the defection of the Plaintiff as Honourable member in the Federal House of Representative for Akure North/South Federal Constituency from the Labour Party (LP) to the Action Congress of Nigeria (ACN)”.
In response to the Originating Summons, whilst the 1st – 3rd and 13th Respondents presented a Counter-Affidavit and written Address urging the Court to dismiss the Appellant’s Originating Summons of January 25th 2012: the 6th – 8th and 10th Respondents presented their respective Notice of Preliminary Objection challenging the Jurisdiction of the Court to entertain the action. The 1st – 3rd Respondents also presented a Counter-Claim to the Appellants Originating Summons. On May 30th, 2012 the Trial Court delivered judgment in favour of the Respondent and also granted the 1st – 3rd Respondents’ Counter-Claim against the Appellant.
The Court for exigency reason heard both the Appellant’s Originating Summons and 1st – 3rd Respondents’ Counter-Claim together and on May 30th, 2012 delivered judgment in favour of the 1st – 3rd Respondents in terms of the Counter-Claim while the Appellant’s suit was dismissed.
Dissatisfied with the decision of the Trial Court, the Appellant filed a Notice of Appeal dated June 26th, 2012 challenging the decision of the Trial Court. The Appellant also filed a Motion for stay of Execution dated 23rd August, 2012, requesting for stay of execution of the judgment of the Trial Court pending the determination of the appeal.
The Appellant’s Notice of Appeal contains ten (10) Grounds of Appeal from which three issues were formulated for the determination of this appeal. At the hearing of the appeal on the 16th June, 2014, Appellant’s learned counsel Oladapo Akinosun Esq. submitted that Section 68 (1) and (g) of the 1999, Constitution allows a member of a political party to defect to another party before the expiration of his tenure, where there is a division or factions in the party that previously sponsored his election to the House of Assembly.
In his reply, the Attorney-General Ondo State, Eyitayo Jegede, SAN, relying on the above provisions of the Constitution, SAN submitted that a Political Party is one single entity with its head office in the Federal Capital Territory and from the facts deposed to in the Appellant/Applicant’s Supporting Affidavit, there is nothing to show that there is division within the National Leadership of Labour Party that will warrant the defection of the Appellant/Applicant to another party. He argued further that the Appellant/Applicant has not brought himself within the exception spelt out in the provision of Section 68 (1) (g) which allows crossing carpet, when there is a division or faction or merger of Political Party. He cited in aid the case of AGF v. ABUBAKAR (2007) 10 NWLR (Pt. 1041) 178 – 179.
Learned SAN, urged the Court to resolve the question for determination against the Appellant/Applicant and dismiss all the reliefs sought by the Appellant/Applicant.
Bode Olanipekun Esq. Counsel to the 4th 9th and 13th Respondents to Counter-Claim filed a Counter-Affidavit to the Originating Summons. The 13th Respondent in the Originating Summons also presented a Counter-Claim dated 24th day of April, 2012 which was supported with written address which he adopted urging the court to dismiss the Appellant’s Originating Summons. He associated himself with the submissions of the Hon. Attorney-General of Ondo State. He emphasized that Sections 221, 222, 222 Section 68 (1) (a) of the Constitution, Sections 44 and 80 of the Electoral Act in all these Sections of the law stated the common word that is the mandatory word SHALL which does not allow for any discretion. Relating this submission to Section 68 (1) (a) of the Constitution implies that a member automatically vacates a seat when he decamps.
Adeolu Ajayi Esq., Counsel to the 6th, 8th, and 10th Respondents also filed a written address dated 26th April, 2012 and aligned himself to the submissions of the Hon. Attorney-General of Ondo State. Counsel for the 12th Respondent did not file any response. The 5th and 7th Respondents filed Respondent’s Brief and urged the Court to allow the appeal.
The lower Court was called upon to interpret the provisions of the law in Section 68 (i) (a) and (g) of the Constitution of the Federal Republic of Nigeria.
I have carefully examined all the issues identified by the parties for determination by this Court alongside the claims and the Counter-Claims by the parties before the Court below, the central theme of the whole case is whether by reason of Appellant’s defection from the Labour Party – the party under whose platform he came to office as a member of the House of Representatives – to the Action Congress his new party, thus abandoning the sponsoring party has not voluntarily vacated the position of a member of the House of Representatives.
All the issues raised by the parties dovetail into one another as far as this central theme is concerned.
In this case, the Appellant admits being a member of the Labour Party, but alleged that there was imbroglio, division, crisis, factionalization, centrifugal tendencies, hurly-burly and brouhaha in the Labour Party in Ondo State. Therefore the Appellant is entitled to dump the Labour Party for another party, even though he had been elected into the House of Representatives on the platform of Labour Party.
The Appellant who asserted that there was crisis in the Labour Party has the onus to prove his assertion.
Section 135 of the Evidence Act provides in no uncertain terms that:
“Whoever desires any Court to give judgment as to any legal right dependent on the existence of facts which he asserts must prove those facts exist”. The simple .and down to earth transaction is “he who asserts must prove” – See KALU v. UZOR (2006) 8 NWLR (Pt. 981) 66.
In other words it is the party that asserts the existence of a particular fact that must prove that fact.
In this case, the Appellant’s allegations boil down to an assertion that there was crisis in the Labour Party in Ondo State. The Appellant did not lead evidence to meet the necessary required facts to prove legally that there was crisis in the Labour Party in Ondo State. There are no averments or evidence placed by the Appellant before the lower Court to show that there was factionalisation, division, crisis in the Labour Party in Ondo State. The allegation made by the Appellant is a serious one, which must be proved. Having not proved the allegation the Trial Court was right to have decided that the alleged crisis in Ondo State Labour Party is within, and does not qualify for the defection of the Plaintiff.
In ATTORNEY-GENERAL OF THE FEDERATION v. ABUBAKAR (2007) 10 NWLR (Pt. 1041) 178-179, Aderemi, JSC held as follows:-
“It is manifest from the above quoted Constitutional provision that the law maker intended to and indeed have made punishable the defection of an elected member from the political party that sponsored him to another political party before the expiration of the term for which the member was elected by declaring the seat vacant”
For the above reasons, and the fuller reasons given by my learned brother, I also dismiss the appeal and abide by order as to costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my noble and learned brother Mshelia J.C.A. and I agree with my lord’s reasoning and conclusions.
This appeal raises only one interesting constitutional issue, namely:
What qualifies as ‘division’ in a political party within the meaning of the proviso to Section 68 (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as to enable a federal legislator to leave the political party that sponsored his election for another and still retain his seat in the National Assembly.
The appellant, a member of the House of the Representatives representing Akure North/South Federal Constituency of Ondo State whose election was sponsored by the Labour Party, argues that any division of whatever kind even at a ward, constituency, or state level is sufficient for the purposes of the proviso. He is joined in this argument by the 5th and 7th respondents, whose traditional role is to defend the judgment of the lower court (Maja v. Oke (2013) ALL FWLR (Pt. 708) 855 @ 862 para E-G; Abu v. Kuyabana (2001) FWLR (Pt. 70) 1520, (2001) 1 NWLR (Pt. 695) 491 and Ajayi v. Military Administrator for Ondo State (1997) 5 NWLR (Pt. 504) 237), but have rather chosen to attack it even as they have not given themselves the platform for that by cross-appealing. In the circumstances, their argument in support of the reversal of the judgment is also discountenanced by me, just as the Supreme Court did in the cases cited above.
The 1st, 2nd, 3rd, 4th, 6th, 8th, 9th, 10th and 13th respondents argue to the contrary. They contend that for a legislator to benefit from the said proviso of section 68 the division within his political party must have a national outlook and so it must start from the national level down to the state and local government, and not confined to a ward, constituency or state; an argument the lower court bought in its totality.
Now, the appellant as plaintiff commenced the suit that has led to this appeal in the Federal High Court, sitting at Akure, by an originating summons dated 25/01/2012 but filed 26/01/2012 wherein, using language that his former colleague Hon. Patrick Obahiagbon would be proud, if not even envious of; he sought answer to the following question:
Whether or not in view of the provisions of Section 68 (1) (g) of the 1999 Constitution (as amended) and the imbroglio, division, crisis, factionalization, centrifugal tendencies, hurly-burly and the brouhaha bedevilling the Labour Party in Ondo State the plaintiff/applicant is not entitled to dump the party for another party. Italics mine.
If the question is answered in the positive (that is, in his favour), he seeks the following two reliefs:
1. A declaration that under and by virtue of the provision to section 68 (1) (g) of the 1999 Constitution (as amended) and the imbroglio, division, crisis, factionalization, centrifugal tendencies, hurly burly and the brouhaha bedevelling the Labour Party Ondo State the plaintiff/applicant is not entitled to dump the party (Labour Party) for another party and, as such, is on a firma terra to have dumped the Labour Party for the Action Congress of Nigeria.
2. A perpetual injunction restraining the defendants from taking any step whatsoever or however described about, concerning or pertaining to the defection of the plaintiff as honourable member in the Federal House of Representatives for the Akure North/South Federal Constituency from the Labour Party (LP) to the Action Congress of Nigeria (ACN).
Italics and underlining mine.
In support of his originating summons, one Funmilayo Oladejo, a litigation clerk in the chambers of his lawyers S. L. Akanmode and Co., deposed on his behalf 26/01/2012 inter alia that:
3 (ii). That he was elected on the platform of the Labour Party (LP) for the Akure Federal Constituency in Ondo state at the last general election as their representative in the Federal House of Representatives.
(iii) That for some time now, the Labour Party (the platform upon which he was elected) has been enmeshed and bedevilled by crisis, divisions, factionalization and other us (sic).
(iv) That the crisis has assumed a dimension that is no longer manageable.
(v) That he has tried his best possible to resolve the crisis without success and has held not less than sixty (60) conciliatory meetings between the waving (sic) factions in the party without success.
(vi) That matters came to a head sometime last year leaving (sic) to the erstwhile Party Chairman in Ondo State (Dr. Olaiya Oni) resigning his position as chairman.
(vii) That immediately after the resignation of Dr. Olaiya Oni, the Party was again enmeshed in another crisis bothering (sic) on who would succeed Dr. Olaiya Oni as party chairman in the state.
(viii) That the crisis led to the emergence of two icons of the party in Barrister Olu Ogidan and Mr. Kunle Odidi both laying claim to the state chairmanship of the party.
(ix) That the crisis has deteriorated and disintegrated (sic) to a level that some members of the party now recognize Barrister Olu Ogidan as the state chairman of the party while others recognise Mr. Kunle Odidi as the authentic state chairman of the party.
(x) That the crisis of who is the authentic chairman of the party in Ondo State has now been submitted for resolution before the Federal High Court, Akure.
(xi) That the above crisis has degenerated to Akure North Local Government where two factions are now laying claim.
(xii) That even parallel state party congresses of the party were held where both Barrister Olu Ogidan and Mr. Kunle Odidi emerged as parallel State Party Chairman for Labour Party in Ondo State.
4. That he has found it impossible, absurd, shameful, intolerable and difficult to operate in this clime and the best option he has is to move to a more rife free and organized political party.
In opposition to the summons, the 1st – 3rd respondents (represented by the Attorney-General of Ondo State), the 4th, 9th and 13th defendants/ respondents (represented by Chief Wole Olanipekun and Co.) and the 6th, 7th, 8th and 10th respondents, as defendants, entered appearances and deposed to counter affidavits where, amongst others, they disputed the appellant’s claim of crises and division in the Labour Party either in the Ondo State chapter or elsewhere.
1st to 3rd and 4th, 9th and 13th respondents even counterclaimed against the appellant, INEC and the Speaker of the House of Representatives (11th and 12th defendants/respondents) for declarations that the appellant, having defected from the Labour Party (9th defendant) that sponsored his election to the House of Representatives, has vacated and ceased to be a member of the House of Representatives. They also sought orders directing the appellant to vacate his seat forthwith, directing the Speaker of the House of Representatives (2nd defendant to the counterclaim) from recognizing the appellant as a member of the House of Representatives, and finally an order directing the Independent National Electoral Commission (INEC) to immediately conduct a bye-election to fill the vacant seat of Akure North/South Federal Constituency at the House of Representatives.
In the counter affidavit of the 4th, 9th and 13th respondents deposed to on 27/02/2012 by the 13th respondent, Barrister Dan Nwanyanwu, National Chairman of the Labour Party, it is stated inter alia that:
1. That I am the National Chairman of the Labour Party.
8. Paragraphs 3(i) (ii) (iv) (v) (vii) (viii) (ix) (x) (xi) (xii) 4, 5 and 6 of the affidavit of the affidavit of Funmilayo Oladejo are false.
9. i. the labour party under my leadership is a body corporate duly registered and recognized by the 12th defendant with perpetual succession.
(ii) The labour Party of which I am the national Chairman is one indivisible entity.
10. (i) That the 4th defendant is the only chairman of the Labour Party in Ondo State known to me as the National Chairman.
(ii) The 5th defendant is not known to me as any officer of the Labour Party in Ondo State and is also not recognized as an officer of the party howsoever.
(iii) There is no crisis of any nature in the Labour Party under my national chairmanship.
(iv) There is also no faction in the Labour Party under my National Chairmanship.
(v) There is no crisis of any nature in the Labour Party in any part of Nigeria including Ondo State.
vi. That the purported crisis mentioned in paragraphs 3(ii) (iii) (iv) (vii) (viii) (ix) (x) (xi) (xii;) , 4 and 5 of the supporting affidavit is:
(a) Within the imagination of the plaintiff
(b) Feigned by the plaintiff for the purpose of this action and his defection.
(c) That the Labour Party in Ondo State did not sponsor the plaintiff to contest election into the House of Representatives but the Labour Party under my National Chairmanship.
(f) The resignation of the said Dr. Olaiya Oni as the chairman of the Ondo State chapter of the Labour Party has not created any crisis in the Labour Party at any level.
(h) Only one State Congress of the party in Ondo State was held in my presence and at which the 4th defendant was elected the Ondo State chapter chairman.
Similar statements were made in the counter affidavit of the 1st to 3rd respondents deposed to by one Mr. Adeniyi Kola on 02/03/2012.
Parties also filed affidavits and counter affidavits in support of the counterclaim and also Further and Better and Affidavits and counter affidavits where the appellant tendered the court cases referred to by Funmilayo Oladejo in the affidavit in support of his summons, the 1st to 3rd defendants/respondents also tendered a certified true copy of p letter (exhibit D) from INEC (12th respondent) confirming that there was no crisis in the Ondo State Chapter of the Labour Party.
In addition to the said exhibits, both sides also tendered, relied and copiously referred to newspaper reports, specifically The Guardian, The Nation and Compass and Newswatch newspapers reporting either that there was not, or was, division in the Ondo State chapter of the Labour Party.
Parties having thoroughly disputed the main issue of division in the Ondo State chapter of the Labour Party, I thought the appropriate thing would be for the lower court to order pleadings so that they can lead oral evidence on that oral important issue on which the appellant’s case rested, as suggested in the cases of Ossai v. Wakwah & Ors (2006) All FWLR (Pt. 303) 239 @ 256 g-h, National Bank v. Alakija (1978) 9-10 S.C. 59 @ 71 and Doherty v. Doherty (1968) NMLR 241. Somehow, the lower court did none of that but relied on newspaper reports, specifically of The Guardian and Newswatch of the 30th and 15th December respectively of 2011, to hold that there was indeed a division in the Ondo State chapter of the Labour Party. I have no doubt that that is a serious error on the part of the lower court, for the law is well settled that newspaper report is hearsay evidence and so irrelevant and inadmissible in proof of whatever is reported there. In RNHW v. SAMA (1991) 12 NWLR (Pt. 171) 64 @ 77, this Court held that:
“A newspaper report is not generally admissible as evidence of the facts recorded in it.”
Again in Olly v. Tunji (2012) ALL FWLR (Pt. 654) 39 @ 67 at para H, this court, per Ogunwumiju J.C.A., reiterated that point, holding that:
“There is no doubt in my mind that this court cannot rely on newspaper publications etc. which the 1st respondent relied on among other evidence. It is a non-issue to consider photocopies of newspaper publications as having any probative value since they have no such value. Newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the said publication.”
Italics mine.
The foregoing statement of the law is also confirmed by the Supreme Court in Ojukwu v. Yar’Adua (2009) ALL FWLR (Pt. 482) 1065. There the petitioner/appellant, Ojukwu, like the present appellant, sought to rely on newspaper reports of alleged electoral malpractices in some parts of the country to prove his election petition. That attempt failed with this retort by Tobi, JSC in his lead judgment at p.1118 paragraph G:
“What is the evidential value of a newspaper report? I do not see any and there is none in law.”
Let me add that this position of the law that a newspaper report is hearsay and so irrelevant and inadmissible in proof of its contents is universal. See for instance pages 50 and 1356 of Volume 1 of Sakar’s Law of Evidence in India, Pakistan etc. where the learned author also has this to say, first at p.50:
“A newspaper report has no evidentiary value as it is inadmissible in evidence. G. K. Bajpayee v. State of Utah Pradesh, AIR 2005 ALL 65 (71); 2005 CrI LJ 1985: 2005 (1) ALL WC 379.”
And at p.1356:
“Newspaper report is inadmissible…. The newspaper report cannot be the basis of filing petition, the statement of fact contained in newspaper is merely hearsay and inadmissible in evidence. R. Bagari v. State of Rajasthan, AIR (2002) Raj 27(28): 2001 (4) Raj LW 355.”
So the long and short of it is that, in actual truth the principal finding of the lower court that there was a division in the Ondo State chapter of the Labour Party at the material time is unfounded and erroneous same being based on irrelevant and inadmissible hearsay evidence. Remove that erroneous finding from the judgment of the lower court and the appellant’s case there would have simply collapsed without further ado.
I however recognize that, wrong as that finding may be, the respondents have not cross-appealed against it; it therefore stands for: the purposes of this appeal and must not be disturbed: see Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298 @ 332 para C-D.; Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664; Oputeh v. Ishidah (1993) 3 NWLR (Pt. 279) 34; Erivo v. Obi (1993) 9 NWLR (Pt 315) 60 @ 75.
That being the case, we must necessarily address the validity of the lower court’s conclusion that a division in a political party within the proviso of section 68 (1) (g) of the Constitution of the Federal Republic of Nigeria (as amended) that a legislator can take advantage to retain his seat when he defects must be one that has a national outlook. And on that I unhesitatingly agree with the lower court’s interpretation of that provision – despite the unnecessary statement there that it is a party and not a candidate that defects (on the later point, it is at least well settled law that the mere fact that a wrong reason was given for a decision cannot be the basis for setting aside the decision if the decision itself is otherwise correct: A.G. Ekiti State v. Daramola (2003) 10 NWLR (Pt. 827) 126; Okeahialam v. Nwamara (2003) FWLR (Pt. 76) 635 @ 642; Lebile v. Regd. Trustees Cherubim and Seraphim Z.N. (2003) 10 NWLR (Pt. 142) 89 @ 104.
Firstly, it has to be remembered that the Law we are dealing with is not a mere statute but a Constitution of a country, consequently some of the rules and cannons of interpretation which apply to ordinary statutes do not sometimes apply. This point was made by Udoma J.S.C. in the celebrated case of Nafiu Rabiu v. Kano State (1980) 8-11 S.C. 85 @ 128 that:
“… mere technical rules of interpretation of statutes are to some extent inadmissible in a way as to defeat the principles of government enshrined in a Constitution.”
Emphasis mine.
The relevant principles for interpretation of a country’s Constitution are as follows:
1. Effect should be given to every word.
2. A construction nullifying a specific clause will not be given to the constitution unless absolutely required by the context.
3. A constitutional power cannot be used by way of a condition to attain an unconstitutional result.
4. The language of the constitution where clear and unambiguous must be given its plain meaning.
5. The constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt as an entirety; a particular provision ca n not be dissevered from the rest of the Constitution.
6. While the language of the constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning.
A Constitutional provision should not be construed so as to defeat its evident purpose.
8. Under a Constitution conferring specific powers I a particular power must be granted or it cannot be exercised.
9. Delegation by the National Assembly of its essential legislative function is precluded by the Constitution (section 58 (4) and section 4 (1)).
10. Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express the meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.
11. The principle upon which the constitution is established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.
12. Words of the constitution are therefore not to be read with stultifying narrowness.
See Global Excellence Comm. Ltd. v. Duke (2007) 16 (Pt. 1056) 22 @ 41-42, per Onnoghen J.S.C.; A.G. of Bendel State v. A.G. of the Federation & Ors (1982) 3 NCLR 1, (1981) 9 S.C. (Reprint) 1 @ 78-79, per Obaseki J.S.C.
A court called upon to interpret a constitutional provision must therefore endeavour not to construe it in so narrow a manner as to defeat the purpose or end the provision was meant to achieve.
It is from that perspective that I shall try to approach the construction of section 68 (1) (g) of the 1999 Constitution of the Federal Republic of Nigeria.
Now, the provisions of the said section 68 (1) (g) of the Constitution in issue are as follows:
(1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if:
a. ….
b. …..
c. …..
d. …..
e. …..
f. ……
g. being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that house was elected.
Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.”
I think the key to a proper understanding of this provision is to embark on an enquiry to the historical setting and antecedent of this rather penal provision of the constitution. In Ogbonna v. A.G. Imo state (1992) 1 NWLR (Pt. 220) 655-656, the Supreme Court said that:
“The historical setting and antecedent of the enactment may in case of difficulty be an aid to its interpretation. Under this rule the interpreter can bear in mind the historical antecedents to an enactment and the mischief which it set out to combat, these matters can be an aid to the construction of the words of the enactment……”
If we follow that lead and go down memory lane of the constitutional development of this country starting from the very first autochthonous constitution of this country, the Republican constitution of 1963, it will be evident that there was a similar provision as the present section 68 of the 1999 Constitution in the 1963 Constitution, but minus the instant provisions regulating defection. It was in section 49 (1) of the said 1963 Constitution. It stated that:
S. 49 – (1) A senator (other than the Oba of Lagos) or a member of the House of Representatives shall vacate his seat in the House of which he is a member-
(a) if he becomes a member of the other House of parliament or the legislator of a region.
(b) if any other circumstance arise that, if he was not a member of that House, would cause him to be disqualified for selection or election as a member under subsection (1), (2) or (3) of section 45 of this constitution.
The section then went to lay down similar conditions like we have in paragraphs a, b, c, d, e and f of the present section 68 of the 1999 Constitution; but like I have pointed out, it had no provision similar to paragraph (g) and its proviso in issue under which a member of the National Assembly was bound to lose his seat for defection. The consequence was that legislators under the 1963 dispensation took advantage of that loophole in the Constitution to regularly abandon in midterm the parties who sponsored their elections and on whose programmes they campaigned to be elected. A notable example is the one in the House of Assembly of the defunct western Region where several members sponsored by and elected on the platform of the NCNC defected to the Action Group on the eve of the first sitting of the Assembly and turned the NCNC which hitherto had the majority to become a minority in the Assembly. It is no doubt to deal with this unwholesome practice that the framers of the very next Constitution of this country – the 1979 Constitution introduced for the first time the present paragraph (g) and the little window in its proviso into sections 64(1) and 103(1) for National Assembly members and State Houses of Assembly members respectively. The framers of the present 1999 Constitution of this country no doubt saw the salutary effects on the polity of the second republic of the provisions of paragraph (g) and its proviso hence the obvious decision to retain it in the present sections 68 (I) (g) and 109 (1) (g) of the 1999 Constitution of the Federal Republic of Nigeria. That is the mischief the provision in issue is clearly meant to deal with and this court must endeavour to give full effect to it; for as Udoma J.S.C further remarked in the same case of Nafiu Rabiu v. Kano State at p.128:
“I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where consistent with the words and sense of such provision will serve to enforce and protect such ends.”
Professor Osinbajo, SAN, for the appellant, for instance, argued at paragraph 32 (pages 19-20) of the appellant’s brief of argument that:
“The proviso to section 68 of the 1999 Constitution basically requires a ‘division in a political party’ to justify a defection from a political party to another and nothing more. Be it a division at the Local, State or National levels, it is immaterial. A political party is a political party for all intents and purposes.”
This interpretation clearly gives a narrow definition to the word ‘division’ and seems to ignore two consequences I am sure even the learned silk will not encourage if he had properly adverted his mind to it. One of this is that a federal legislator elected on the platform of a party could well validly defect if there is even just a division between a ward chairman and his secretary, a division between two officers of a ward executive of a political party or just between some few ordinary but noisy members of a party in a ward, local government or state chapter of the party, going by his contention that any division of whatever nature suffices. The other consequence this submission is that, if all it takes for an elected legislator to defect from his party is just any “division ” in his political party, regardless of where it is coming from and how localized it is, even a legislator in one far away state could cite a division in a ward, local government or state chapter of his political party in another state, even when it has nothing to do with him and his electorate, to defect. Both of these scenarios will amount to turning the provision of section 68 (1) (g) on its head. Certainly, that cannot be the intention of the framers of the 1999 Constitution, as otherwise we simply revert to the 1963 situation when there was no provision like paragraph (g) of section 68 and defection was an all-comers affair. I cannot see myself accepting such narrow and self-serving interpretation of the provision in issue.
I will add that the division even at the national level must itself be real and significant and not just by a few and or inconsequential members.
Let me also say, but just in passing, that I do not also see how the mere filing of a case in court by an unsuccessful party member in an intra-party political, contest claiming division in his party can without more amount to proof of, or be taken as evidence of the division alleged, as is suggested by the appellant. It is after all common knowledge that uncountable cases are filed daily in our courts, most times even in obvious abuse of process, too, just to achieve certain short-term ends, after which they are abandoned. Even for the ones that are lucky to be prosecuted, a great number are struck out or dismissed for lack of merit or failure to proof the matters therein alleged. It will therefore be ludicrous to suggest that the mere filing of a case is proof of whatever is claimed or alleged in it.
It is for all these and the fuller reasons in the judgment just delivered by my lord Mshelia, J.C.A. that I also hold that this appeal is unmeritorious and it should be dismissed in its entirety. I also abide by the order of my Lord that parties bear their costs.

Appearances

O. Akinosun with A. Adedoyin, Esq., and J.O. Ezenweani, Esq. For Appellant

AND

Eyiyato Jegede, Attorney-General Ondo State (SAN) with C. K. Akinrinsola (DCL) Ministry of Justice Ondo State and H. M. Falawo (SLO) for 1st, 2nd and 3d Respondents.
Olabode Olanipekun with Bolarinwa Awujoola, Esq., for the 4th, 9th and 13th Respondents.
Tolu Babaleye with Apanishile Akin, Esq., for the 5th and 7th Respondents.
Adeolu Ajayi for the 6th, 8th and 10th Respondents. For Respondent

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