HON. PETER NWALI v. EBONYI STATE INDEPENDENT ELECTORAL COMMISSION (EBSIEC) & ORS (2014)

HON. PETER NWALI v. EBONYI STATE INDEPENDENT ELECTORAL COMMISSION (EBSIEC) & ORS

(2014)LCN/7445(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of September, 2014

CA/E/510/2013

RATIO

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO PRIVACY; THE SCOPE OF RIGHT OF PRIVACY UNDER THE CONSTITUTION AND THE ASPECT OF PRIVACY

The correct approach to the determination of the scope of the right of privacy vested by S. 37 of the 1999 Constitution is to first state the right as prescribed by the express provisions of the section without omitting any aspect of the right, especially where the provision has stated specifically the different types of privacy that it protects. S. 37 of the 1999 Constitution states that “the privacy of citizens, their homes, correspondence, conversations and telegraphic communication telephone guaranteed and protected”. It is clear from the of the provision that it specifically mentioned the types of privacy that it protects. Five of them are listed therein as follows-

The privacy of citizens
The privacy of their homes
The privacy of their correspondence
The privacy of their telephone conversations
The privacy of their telegraphic communication.

These are clearly restated by this court in Federal Republic of Nigeria V. Daniel (2011) 4 ELR 4152 thus- “Undoubtedly, by virtue of the provision of section 37 of the 1999 Constitution, the privacy of every Nigerian citizen, the home, correspondence, telephonic and telegraphic communications are cherishingly guaranteed and protected.”

The trial court in stating the scope of the said right, listed the aspects of privacy S.37 contemplates as follows-

Privacy at home
Privacy of one’s communication
Privacy in private family and matters incidental thereto.

I understand privacy of one’s communication as used by the trial court to mean privacy of correspondence, privacy of telephone conversations and privacy of telegraphic communication. It excluded the privacy of the citizens expressly provided for in S. 37 of the constitution and included privacy of private family life and matters incidental thereto not expressly provided for in the of the provision.

The privacy of home, privacy of correspondence, privacy of telephone conversations and privacy of telegraphic communication are clear and particular as to the nature of privacy protected or the area or activity in respect of which a person is entitled to enjoy privacy.

It is obvious that the right to the privacy of the person’s decision and choice of candidate to vote for cannot be enjoyed as part of the privacy of his home, the privacy of his correspondence, the privacy of his telephone conversation and the privacy of his telegraphic communication.

It is glaring that the phrase “Privacy of Citizens” is general and is not limited to any aspect of the person or life of a citizen. It is not expressly defined by the constitution and there is nothing in the constitution or any other statute from which it’s exact meaning or scope can be gleaned. It is trite law that where a word or phrase used in a statute or other document is not expressly defined by the statute that used it and there is nothing therein or in another law from which its true meaning can be gleaned, there is need for the court to interpret it. See A -G Lagos State V Eko Hotels Ltd & Anor (2006) 9 SC 46 where the Supreme Court held that where the meaning is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention. This is one principle of constitutional interpretation”.
Furthermore, Learned Counsel for the appellant and the Learned Attorney General for the 1st, 2nd and 3rd respondents do not agree on the meaning and scope of this privacy. This appeal is against the decision of the trial court on the scope of the right to privacy. It is also settled law that where both counsel to each party in a case do not agree on the meaning of a provision in a statute or there is an appeal against the decision interpreting a provision, a duty vests in the court, or the appellate court, as the case may be, to interpret the provision and give it a definite meaning. See Pearlman V Harrow School (1978) 3 WLR 736 at 741.Words are most often prone to different meanings. Even very simple words can be differently understood. However, in all cases, where a court has to apply the provisions of a statute or document, the need to interpret same arises, as it has to ascertain the meaning of a statutory provision before it can apply it. As Lord Denning MR stated in Pearlman V Harrow School, however simple the words in a statute or document are, their interpretation is a matter of law.

I will now interpret the phrase “Privacy of Citizens” in S. 37 of the 1999 Constitution to give it a definite meaning and scope. Since there is no legal interpretation of the words in the constitution or in any statute, I will interpret the words on the basis of their intrinsic reasonableness, logically, in an extensive manner to give the words a comprehensive meaning that accords with the object of S. 37 of the 1999 Constitution. Furthermore, since it is a Constitutional provision and is one providing for the fundamental right of a person, it has to be so interpreted to enable it be purposive and meaningful. per. EMMANUEL AKOMAYE AGIM, J.C.A.

CONSTITUTIONAL LAW: CONSTITUTIONAL AND FUNDAMENTAL RIGHTS ADJUDICATION; THE TOOLS THAT SHOULD BE USED IN CONSTITUTIONAL AND FUNDAMENTAL RIGHTS ADJUDICATIONS

The courts across jurisdictions have, through the cases laid down the conceptual tools that should be used in Constitutional and fundamental rights adjudications and in the process evolved the principled criteria upon which the interpretation of the Constitution must proceed. Just as the criteria for the interpretation of statutes differ between statutes according to the subject matter of each statute, the criteria for the interpretation of statutes and other documents must be different from those for the interpretation of the Constitution because of its sui generis nature as the fundamental and supreme law of the Land, an organic document and predominantly a political document. Therefore it must be interpreted in line with principles suitable to its spirit and character and not necessarily according to the general rules of interpretation of statutes and documents. In Bronik Motors Ltd & Anor V Wema Bank Ltd (1983) All NLR 272, the Supreme Court held per Nnamani JSC that “A Constitution is a living document (not just a statute) providing a framework for the governance of a country not only for now but for generations yet unborn. In construing it, undue regard must not be paid to merely technical rules or otherwise the objects of its provisions as well as the intention of the framers of the Constitution would be frustrated. As was stated in Minister of Home Affairs V. Fisher (1979) 2 WLR 899; 1980 A.C. 319 at 328 a Constitutional instrument should not necessarily be construed in a manner and according to rules which apply to Acts of Parliament.
Although the manner of interpretation of a constitutional instrument should give effect to the language used, recognition should also be given to the character and origins of the instrument. Such an instrument should be treated as sui generis calling for principles of interpretation of its own suitable to its character without necessary acceptance of all the presumptions that are relevant to legislation of private law.”

One of the principles suitable to its sui generis nature is that it must be given a benevolent, broad, liberal and purposive interpretation and a narrow, strict, technical and legalistic interpretation must be avoided to promote its underlying policy and purpose. In Rabiu V Kano State (1980) 8 11 SC (Reprint) 85, the Supreme Court restating what the court should bear in mind when interpreting Constitutional provisions held per Idigbe JSC that “it is the duty of this court which has the ultimate responsibility of declaring and interpreting provisions of the constitution always to bear in mind that the constitution itself is a mechanism under which laws are to be made by the Legislature and not merely an Act which declares what the law is. Accordingly, where the question is whether the constitution has used an expression in the wider or in the narrower sense the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the con or in the rest of the constitution to indicate that the narrower interpretation will best carry out its object and purpose.” In Abdulkarim V Incar (Nig) Ltd (1992) NWLR (Pt. 251) 1, the Supreme Court per Uwais JSC held that “It is settled that in the interpretation of any provision of the Constitution, our courts should be liberal so that the intendment of the Constitution can be met”. See also A-G Lagos State V Eko Hotels Ltd & Anor (2006) 9 SC 46 and A -G Lagos State V A -G Federation (2003)6 SC (pt (1) 24

In interpreting the part of the Constitution providing for the protection of certain fundamental rights in a constitutionally established democratic culture, the court must do so on the basis of principles that give the provision a meaning that promotes the values that underlie and are inherent characteristics of an open democratic society. Therefore, in interpreting any legislation in relation to any fundamental right provision of the constitution, the court must promote the spirit, the purport and objects of the fundamental rights provisions of the Constitution.

The holding of Ayoola JCA (as he then was) in Agbakoba V Director General SSS (Supra) cited by Learned Counsel for the Appellant is very instructive on the appropriate approach to the interpretation of Constitutional and or fundamental rights protection provisions. His Lordship stated that- “The error which the learned judge fell into is probably in not realizing that the constitution cannot condescend to details in its description of the fundamental rights and freedoms it guarantees. The constitution is an organic document which must be treated as speaking from time to time. It can therefore only describe the fundamental rights and freedoms it guarantees in broad terms. It is for the courts to fill the fundamental rights provisions with contents such as would fulfill their purpose and infuse them with life. A narrow and literal construction of human rights provisions in our constitution can only make the constitution arid in the sphere of human rights. Such approach will retard the realization, enjoyment and protection of those rights and freedoms, and is unacceptable” (499 -500 para. H -B) “while the rest of the civilized world is expanding the boundaries of freedom and reaping the consequence of such expansion in stability and economic and social development, it will be sad were we, in this jurisdiction, to define the boundaries of freedom so narrowly as to become meaningless. Though she might not have intended it, that would be the result of the view expressed by the learned judge when she held that possession of a passport is a privilege and not a right” (499 para. E -F). per. EMMANUEL AKOMAYE AGIM, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO PRIVACY; THE MEANING OF THE TERM “PRIVACY OF CITIZENS’

The meaning of the term “privacy of Citizens” is not directly obvious on its face. It is obviously very wide as it does not define the specific aspects of the privacy of citizen it protects. A citizen is ordinarily a human being constituting of his body, his life, his person, thought, conscience, belief, decisions (including his plans and choices), desires, his health, his relationships, character, possessions, family etc. So, how should the term, privacy of the citizen be understood? Should it be understood to exclude the privacy of some parts of his life? The Supreme Court following the non- restrictive and liberal approach interpreted it as including the privacy of all his constituents as a human being in Medical and Dental Practitioners Disciplinary Tribunal V Okonkwo (Supra) when it held that “the right to privacy implies a right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion and one’s body from unwarranted invasion.” Even the trial Court in stating the scope of the right to privacy under S. 37 of the Constitution accepted the non-restrictive approach. This can be seen from its holding that the right includes “privacy in private family life and incidental matters” when this aspect is not expressly provided for in that section and that meaning is not patently obvious from the of that section. But, its interpretation was not liberal or extensive enough to include the privacy of the other aspects of a citizen enumerated above as part of his or her privacy, and even interpreted the section to exclude the privacy of his decision and choice of candidate to vote and whom he voted for from the protection of that section and gave no reason for that.

It is glaring that there is nothing in the phrase “Privacy of Citizens” or in the entire of S.37 of the Constitution, and the Constitution as a whole suggesting or compelling a restricted interpretation of the phrase. As couched in such general terms, unless interpreted literally, extensively, and expansively, providing the details of the citizen’s privacy that is protected therein, the phrase will be meaningless and sterile. Every provision in the Constitution was made with the intendment of realizing a particular practical object. Therefore it cannot be presumed that any clause in the Constitution is intended to be without effect. See Obayuwana vs. Governor of Bendel State & Anor (1982) 12 SC (Reprint) 67 per Nnamani JSC.
Where the Constitution states a word or phrase generally or without any limiting words, it is obvious that it intends that the word or phrase should have a general meaning and application, unless other provisions in the Constitution state or suggest the contrary. If there are no other provisions of the Constitution requiring or suggesting the contrary, the Court must apply the word or phrase generally, and will have no power to restrict its application to specific situations.
For the above reasons, I interpret the phrase “privacy of citizens” generally, liberally, and expansively to include privacy of citizens’ body, life, person, thought, belief, conscience, feelings, views, decisions (including his plans and choices), desires, health, relationships, character, material possessions, family life, activities et cetera. Therefore the privacy of his choice of that candidate and the privacy of his voting for that candidate constitute part of his “privacy” as a citizen. per. EMMANUEL AKOMAYE AGIM, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN TO PROVE OR SHOW THAT A LAW’S DEROGATION FROM AND INCONSISTENCY WITH ANY OF SECTION 37,38,39 AND 0 OF THE CONSTITUTION

The burden to prove or show that a law’s derogation from and inconsistency with any of sections 37, 38, 39, 40 and 41 of the Constitution is reasonably justified in a democratic society rests on the party asserting so. The party who is contending that the law is void for the reason of its inconsistency with the Constitution has the duty to show that such law is inconsistent with the Constitution. Once he has discharged that duty, the burden then shifts to the party who is asserting that the inconsistency is reasonably justified in a democratic society in the public interest and to protect the rights of others, to show that it is so reasonably justified. If it is not shown that such law is reasonably justified in a democratic society, it will be struck down as void. The Canadian Supreme Court in Sauve V Canada (Chief Electoral Officer) (2003) 4 LRC 197 held that an amendment to the Canadian Elections Act, RSC 1985 could not be saved under section 1 of the Canadian Charter of Rights and Freedom (similar to S. 45 of the 1993 Constitution of Nigeria) as a reasonable limit on the fundamental right of certain prison inmates to vote in a free and democratic society because the Government failed to establish a rational connection between the denial of the right to vote and the claimed objectives of enhancing respect for the law and ensuring appropriate punishment. The appellant has shown that S. 5 (1) and paragraph 21 (2) to (5) of the 1st schedule to Ebonyi State Electoral (Amendment) and Related Matters Law 2010 is inconsistent with S. 37 of the 1999 as it restricts or curtails his right of privacy of citizen. The burden then vested on the 1st, 2nd, and 3rdrespondents to show that S. 5 (1) and Paragraph 21 (2) to (5) of the said Ebonyi State Electoral (Amendment) Law, 2010 is reasonably justified in a democratic Society in the interest of defence, public safety, public order, public morality or public health and for the protection of the rights and freedom of other persons. I will now consider if the appellant discharged this burden. per. EMMANUEL AKOMAYE AGIM, J.C.A.

CONSTITUTION LAW: FUNDAMENTAL RIGHT TO VOTE AND BE VOTED FOR AND PRIVACY; WHETHER A CITIZEN IS ENTITLED TO BE INDEPENDENT IN HIS OR HER DECISION OF WHOM TO VOTE AND HIS OR HER CHOICE OF WHOM TO VOTE AND THE RIGHT OF PRIVACY OF THE DECISION TO VOTE A CANDIDATE

A voter is entitled to be independent in his or her decision of whom to vote and his or her choice of whom to vote, which is a result of that decision. A voter is entitled to be free in expressing that choice by voting. The freedom to express that choice must not be compromised by the electoral process or interfered with by physical attack of the voter or by duress through threat of physical harm of the life or person or property of a voter or threat of other form of reprisals or by undue influence and any other form of influence during the voting process.

The privacy of the decision to vote a candidate and the voting of that candidate prevents anybody from knowing whom he or she has decided to vote for and has voted for and thereby removes or limits the likelihood of interference with the decision or vote. The privacy of the decision and the vote promotes the independence of the decision to vote for a candidate and the freedom to express that decision or choice, as the voter can vote without fear in the safety of his privacy.

The voter’s independence of decision and choice of candidate and the freedom to express that choice is the sole indicator that the poll was free. There can be no free and democratic society without this independence of decision and freedom to express that decision. Therefore a method of voting that compromises the voter’s independence of decision and choice of candidate and the freedom to express that choice by exposing him to threat of harm by those he or she did not vote for or the ill-feelings and animosity of such persons or to fear of suffering reprisal if it is known that he or she did not vote for a particular candidate, cannot guarantee a free poll. It is difficult to conceive such a method of voting as reasonably justifiable in a democratic society. If a voter, during voting is unable to independently decide whom to vote for and cannot freely vote for such a candidate, then his right to vote becomes meaningless and destroyed. The voters right to independence of his or her decision or choice of whom to vote and freedom to express that choice without interference is part of his or her fundamental right to hold opinion and express it without interference whose protection is guaranteed by S. 39 (1) of the 1999 constitution. The open ballot system violates the voter’s fundamental right to freedom to hold and express his or her opinion because by removing the privacy of the vote it diminishes or disables the ability of the voter to be independent in his opinion of whom to vote for and his freedom to express that opinion by his vote. As held by the supreme court of Sri Lanka in Thavaneethan V Commissioner of Elections & Ors 4 CHRLD 272 (holding 7),”the silent and secret expression of a citizen exercising his right to vote amounts to an exercise of his freedom of expression.”
To continue to deepen and widen the entrenchment of democratic values and culture in our country, to promote the fundamental concept of a true democracy that sovereignty belongs to the people and guarantee good governance for the general well being of our people, protection of the citizen’s right to vote should not be allowed to be compromised by any means.
The right to vote is the most fundamental and important of all the rights of a citizen.Without it, the enjoyment of all other rights are compromised and threatened. Without it, sovereignty cannot belong to the people and the society cannot be democratic. The weaker the protection of the right to vote, the weaker the ability of the voter to exercise it and the weaker the sovereignty of the people and the weaker the democratic practice and institutions of the country. The judiciary as the guardian of our rule of law and democracy and the midwife of our legal system must lean in favour of protection of the right to vote.
per. EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

MISITURA O. BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

HON. PETER NWALI Appellant(s)

AND

1. EBONYI STATE INDEPENDENT ELECTORAL COMMISSION (EBSIEC)
2. SPEAKER, EBONYI STATE HOUSE OF ASSEMBLY
3. ATTORNEY GENERAL, EBONYI STATE
4. RESIDENT ELECTORAL COMMISSIONER (REC) INEC, ABAKALIKI EBONYI STATE Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering the Leading Judgment): On the 28th August 2013, the appellant herein, as applicant by an originating motion on notice, commenced suit No. FHC/AI/CS/38/2013 in the Federal High Court at Abakaliki against the respondents herein, applying for the enforcement of his fundamental right to privacy and praying for the following reliefs:

A. A Declaration that the applicant and other voters in Ebonyi State are entitled to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered).

B. A Declaration that the open ballot system of voting, that is queuing behind the candidate of your choice in the full glare of everybody constitutes a violation of the right of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered).

C. Declaration that section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 violates the rights of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the constitution of Nigeria, 1999 (as altered) and as such, ineffectual.

D. A Declaration that section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 is inconsistent with section 52 (1) of Electoral Act, 2010 (as amended) and, as such, null and void.

E. An order of perpetual injunction restraining the 1st respondent from using open ballot system of voting to conduct the Local Government Election slated for the 28th September, 2013 or any other Local Government Election.

F. An order of perpetual injunction restraining the 4th respondent from making available the voter’s register to the 1st respondent for the purposes of using open ballot system to conduct the election.

G. Any other further or other order(s) as the Honourable Court may deem fit to make the circumstances.

The motion on notice is supported by an affidavit of 28 paragraphs deposed to by the appellant. Attached to and exhibited with the affidavit is exhibit PN1 (his voters card), exhibit PN2 (internet printout of statement of 1st respondent on mode of conduct of the then forth coming Local government Election in Ebonyi State) exhibit PN3 (1st respondent’s published programme of activities preceding the 28-9-2013 Local government Election), exhibit PN4 (Ebonyi State Electoral (Amendment) and Related Matters Law, No 5 of 2010), exhibits PN5, PN5B, PN5C and PN6 (extracts of the voice and Citizens Advocate Newspapers showing violence in PDP primaries) a statutory statement of the name and description of the applicant’s reliefs sought and the grounds therefor.

The appellant filed a written argument of his case along with the application. The 1st, 2nd and 3rd respondents filed a notice of preliminary objection to the application along with a written argument of same. They also filed a counter-affidavit in opposition of the application and a written argument opposing the application. The appellant filed an affidavit in reaction to the preliminary objection of the 1st 2nd and 3rd respondents and a written argument of same.

The preliminary objection was argued as counsel to both sides adopted their respective written addresses. Learned Counsel to the 4th respondent then informed the court that they have received all the processes in the case but have filed nothing and that they had nothing to contribute to the preliminary objection. She added that “we are neutral in the matter.” Thereafter, Learned Counsel for the applicant argued the motion on notice applying for the enforcement of the applicant’s fundamental right, adopting his written address of same. The Learned A -G for the 1st, 2nd, and 3rd respondents relied on their counter-affidavit and written address opposing the application and urging that same be dismissed. Learned counsel to 4th respondent said they filed nothing.

On the 20th September, 2013, the trial court delivered its ruling upholding the preliminary objection and stating that it will not go into the substantive motion having upheld the said objection. It dismissed the suit.
Dissatisfied with this ruling, the applicant on 24-9-2013, commenced this appeal No. CA/E/510/2013 against the part of the ruling dismissing the application for not falling within the purview of S. 37 of the 1999 Constitution, by filing a notice of appeal containing 4 grounds for this appeal.

Both sides, except the 4th respondent, have filed, exchanged and adopted their briefs of argument as follows, appellant’s brief of argument, 1st, 2nd and 3rd respondents’ brief of argument and appellant’s reply brief.

The appellant’s brief of argument raised the following issues for determination:

1. Whether the court below was right when it held that the complaint of the applicant does not fall within the contemplation of Fundamental Rights and cannot be enforced through the Fundamental Rights Enforcement Procedure (From Ground 1)

2. Whether the court below was right when it failed to apply the definitions of privacy and rights to privacy as given by Black’s Law Dictionary, 8th Edition and Supreme Court in the case of Medical and Dental Practitioner’s Disciplinary Tribunal V Dr John E. N. Okonkwo (2001) 5 NSCQR; 650 at 683 -685. (From Grounds 3 & 4)

3. Whether the court below was right when it held that the right to privacy contemplates only of “right to privacy at home, privacy of one’s communications, privacy in family life and other incidentals thereto” without seeing right to privacy while voting at an election as being incidental thereto. (From Ground 2)

The 1st, 2nd and 3rd respondents’ brief of argument raised the following issues for determination:

1. Whether the right to vote is a fundamental right envisaged in Chapter IV of the constitution of the Federal Republic of Nigeria, 1999 (as amended)?

2. If Issue No. 1 is answered in the negative, whether voting in a particular mode can rightly be said to be a contravention of a right especially where that right is not contemplated under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999 (As amended)

3. Whether voting in a particular manner is incidental to the right to privacy?

Considering the judgment of the trial court, the grounds of appeal, the issues for determination in this appeal raised by both parties and their arguments of those issues in their respective briefs of argument, I prefer to determine this appeal on the basis of the issues raised in the appellant’s brief for the determination of this appeal. Learned counsel for the appellant argued them together. I will also consider them together.

I will start the determination of these issues by reproducing the part of the ruling of the trial court complained against in this appeal for ease of reference and to facilitate the understanding of the treatment of these issues. It can be easily reproduced here because it is very short. The trial court stated thus: On the 3rd issue which is on whether the right to vote in an election is a fundamental right to privacy as contemplated by S. 37 of the 1999 constitution. That Section provides: The privacy of citizens, their homes, correspondence, Telephone conversations and telegraphic communication is hereby guaranteed and protected.

This presumes that a person has the right to live the way he likes within the ambit of law and acceptable practice of civilized society. He must live according to the laws of the land.

Now the laws of Ebonyi State have provided that Local Government Elections be held with the method of open ballot system of voting.

I agree with the counsel of the 1st to 3rd respondents that the right to vote is a civic right which includes freedom of choice to pick a candidate of one’s choice. The complaint of the applicant is not that he is being prevented from picking a candidate of his own choice. His complaint is that he will be made to publicly vote for his candidate.

In my humble view, it is pretty difficult to see how this violates his privacy. The right to privacy contemplates right to privacy at home, privacy of one’s communication, privacy in private family life and matters incidental thereto. It is not right to privacy in every activity under the sun so that the definition of privacy in Black’s Law Dictionary is inapplicable.

Fundamental rights of individuals are limited by S. 45 of the 1999 constitution which provides that “Nothing in Sections 37 to 41 of the 1999 Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) in the interest of defence, public safety, public order, public morality or public health…

In his affidavit in support of motion the applicant stated that the open ballot system is crude and not in tune with democratic principles. That S. 5 (1) of the Ebonyi State Electoral (Amendment) and Related Matters Law 2010 which provides for it is inconsistent also(sic) Section 52 (1) of the Electoral Act 2010 as amended but a fundamental right suit is not the appropriate procedure to challenge the law.

Looking at the provisions of S. 37 of the 1999 Constitution it does not as pointed out by the counsel to the 1st to 3rd respondents amount to a fundamental right to vote in any particular method. So that the method being complained of by the applicant is not within the contemplation of fundamental rights and cannot be enforced through the Fundamental Rights Enforcement Procedure. See Tukur V. Government of Gongola State (1989) 4 NWLR Pt. 117 at 517.

I will therefore uphold the Notice of the Preliminary Objection and that being the case I will not go into the Substantive Motion.

This suit is hereby dismissed.

The first argument of Learned Counsel for the appellant against the above decision of the trial court is that the trial court framed and answered a question different from the one raised by the appellant before it at the trial. He stated that the appellant’s contention was that, subjecting him to vote by queuing publicly behind the candidate of his choice in the Ebonyi State Local Government Election, violates his right to privacy as guaranteed and protected by S. 37 of the 1999 Constitution (as altered), and that the 1st, 2nd and 3rd respondents in their preliminary objection at the trial court raised the issue, “whether the right to vote (secret or open) is a fundamental right to privacy as contemplated by section 37 in chapter IV of the 1999 Constitution (as amended)”. According to Learned Counsel, the trial court adopted the above issue as couched by the 1st, 2nd and 3rd respondents in determining the preliminary objection and as a result reasoned that since the right to vote is not a right to privacy under the 1999 Constitution, the complaint of being compelled to vote by queuing publicly does not come within the ambit of S. 37 of the 1999 Constitution and cannot be enforced via the Fundamental Right Enforcement Procedure Rules. He then proceeded to submit that the appellant never contended that the right to vote is or is not a fundamental right to privacy, or that his right to vote is denied or about to be denied him and that the trial court abandoned the issue raised by the appellant and determined a different one.

The Learned Attorney General did not answer this argument in the 1st, 2nd and 3rd respondent’s brief. This failure to respond to that argument does not make it correct. As this court held in ONWUGBELU VS. EZEBUO & ORS IN CA/E/56/2009 DELIVERED ON 21-2-2013 (unreported) following the Supreme Court decision in ECHERE VS. EZIKE (2006) ALL FWLR (PT. 323) 1597 AT 1608 and its earlier decision in Tractor & Equipment (Nig) Ltd & Ors vs. Integrity concepts Ltd & Anor (2011) LPELR 5034 “where one party in a case has argued a point whether of law or fact, he thereby invites the Court to judicially determine the issue so argued. The argument serves to invoke and guide the Court’s judicial inquiry into the issue. The contrary or alternative argument by the other side is to provide an alternative or balanced guide for the Court on the matter. The absence of such reply cannot be taken to mean that the pending argument represents the law and the facts of the case. The appellant’s argument serves to show that the judgment is wrong in a particular respect having regard to the facts and the law. The arguments remain mere inferences or opinions of law and facts on the basis of the evidence on record. It is the state of the facts on record and the existing relevant law that will determine the validity of such argument and not the absence of an alternative or contrary opinion. It will help the substantial justice of the case if the merit of the pending argument is considered on the basis of the facts before the Court and the existing law relevant to the facts of the case.”

The above argument of Learned Counsel for the appellant lacks merit. There is no doubt that the above issue for determination as framed by the Learned Attorney General at the trial was adopted by the trial court and determined as issue No 3 in its judgment. But the trial court in considering that issue redirected itself and reset its compass by stating that “The complaint of the Appellant is not that he is being prevented from picking a candidate of his own choice. His complaint is that he will be made to publicly vote for his candidate”. This shows that the trial court clearly understood and addressed its mind to the actual complain of the appellant and not the issue as framed by the Learned Attorney General for the 1st, 2nd and 3rd respondents. The Learned Counsel for the appellant has stated in the appellant’s brief that “The complaint of the appellant is that compelling him to queue publicly behind the candidate of his choice, in the performance of his civic right to vote, violates his right to privacy.” This is clearly the same with what the trial court identified in its judgment as the complain of the appellant.

The central argument of Learned Counsel for the appellant in respect of the case brought by the appellant is that, compelling an individual to disclose who he/she votes for in an election, by queuing publicly behind the person, violates the individual’s right to privacy under S. 37 of the 1999 Constitution and also exposes him or her to the danger of being attacked by political thugs and that it was this situation that led to the deaths and destructions that characterized the recent PDP primaries in Ebonyi State that was conducted via open ballot system, as those who saw that they were losing caused confusion with ensuring shootings leading to death and destructions. Learned Counsel further argued that the trial court was wrong to have held that the appellant’s complain does not come within the ambit of S. 37 of the 1999 Constitution as the right to privacy in that section contemplates only “right to privacy at home, privacy of one’s communication, privacy in private family life and matters incidental thereto.” According to Learned Counsel, this interpretation by the trial court is over restrictive and dry, and that the fact that the Constitution did not expressly mention the right to privacy while casting vote in an election does not mean that the right to privacy provided for in S. 37 of the 1999 Constitution does not extend to privacy while casting vote in an election.

Learned Counsel relied on this court’s decision in AGBAKOBA VS. DIRECTOR, SSS (1994) 6 NWLR (PT 351) 475 that the fundamental rights provisions in the Constitution be interpreted and applied liberally, in broad terms, in a manner as to infuse them with life and not defeat them, and should not be interpreted restrictively and narrowly. He then submitted on the basis of this decision that the right to privacy under S. 37 of the Constitution will be incomplete and meaningless if the appellant and other citizens, while exercising their civic right to vote are compelled to disclose who they vote for by queuing publicly behind the candidate of their choice and that this will endanger their lives. Relying further on the said decision, he submitted that the rights not to be compelled to show who you vote for in an election is a necessary concomitant of the right to privacy guaranteed and protected by S. 37 of the 1999 Constitution.

Learned Counsel for the appellant also relied on the definition of privacy in Black’s Law Dictionary (8th Edition) and submitted that the right to privacy entails the right of an individual not to have his actions, activities and decisions subject to unwarranted public scrutiny, exposure, interference observation or intrusion and that the right to privacy of citizens under S. 37 of the Constitution can hardly be construed to exclude all the attributes of the definitions in Black’s Law Dictionary and still remain meaningful. Learned Counsel then submitted that compelling the appellant and other voters to vote by queuing behind the candidate of their choice is that their thoughts, conscience, knowledge and act of voting will be subjected to unwarranted public observation exposure, scrutiny and, possibly, interference and intrusion and this is not only a violation of their right to privacy but could expose their lives to danger as they could become the targets of the political thugs of those they voted against. He also relied on the decision of the Supreme Court in MEDICAL AND DENTAL PRACTITIONER’S DISCIPLINARY TRIBUNAL VS. OKONKWO (2001) 5 NSCQR 650 AT 684-685 on the implication of the right to privacy.

Another argument of Learned Counsel for the appellant is that although the right to privacy is not absolute, it can only be violated in accordance with the provisions of S. 45 of the 1999 Constitution in the interest defence, public safety, public order, public morality and public health or for the purpose of protecting the rights and freedom of others. He then followed this argument by stating that the “question that arises is whether the decision by the 1st respondent to compel the appellant and other voters to vote by queuing publicly behind the candidate of their choice is in the interest of defence or public safety or public order or public morality or public health or for the purpose of protecting the rights and freedom of other persons?” He then stated that “the answer is an obvious No”

Learned Counsel for the appellant also argued that the trial Court’s reliance on the Supreme Court decision in TUKUR V. GOVERNMENT OF GONGOLA STATE (1989)4 NWLR (PT 117)517 in holding that the appellant’s claim could not be enforced by means of the Fundamental Rights Enforcement Procedure Rules was wrong because the case is inapplicable to the present case. According to Counsel, in that case, the principal claim was for an order quashing the applicant’s deposition as Emir and restoring him to the throne, while the ancillary or incidental claim was in respect of the violation of his fundamental right in the course of his deposition as Emir, while in the present case the principal claim is that it is a violation of his right to privacy to compel him to vote openly by queuing behind the candidate of his choice. He further argued that it was because the principal claim, a chieftaincy matter, was outside the jurisdiction of the Federal High Court, that the Supreme Court held in Tukur’s case that the said court could not exercise jurisdiction to entertain the incidental claims for the enforcement of fundamental right, but that in this case the primary claim for a declaration that compelling the applicant to vote openly by queuing behind the candidate of his choice violates his right to privacy is within the jurisdiction of the Federal High Court.
Learned Counsel for the appellant finally submitted that compelling people to vote by queuing behind the candidate of their choice is archaic, primitive and risky, that it is noteworthy that this is being practiced only in Ebonyi State, that majority of the voters who do not want to vote openly, stay away from voting and that the 1st respondent unless judicially restrained, will continue to use this method.

The Learned Attorney General for the 1st, 2nd and 3rd respondents argued relying on the decisions in UNILORIN VS. OLUWADARE (2006) 27 NSCQR 18, AMALE VS. SOKOTO LOCAL GOVERNMENT (2012) 492 NSCQR 1271, CHUKWUOGO VS. CHUKWUOGO (2006) 7 NWLR (PT 979) 302 AT 317, ABDULHAMID VS. AKAR (2006) ALL FWLR (PT 324) 1191 AT 1209 that the rights that can be enforced via the Fundamental Rights Enforcement Procedure Rules must be the rights contained in Chapter IV of the Constitution and that an application can be brought under those Rules only where the principal claim is one for the enforcement of the fundamental rights in the said chapter IV of the Constitution and not where it is incidental or ancillary to a right not enforceable by those Rules. He then submitted relying on the decision in MADUKOLU VS. NKEMDILIM (1962) 2 ALL NLR 341 that an application brought under the Fundamental Right Enforcement Procedure Rules to enforce a right not contained in chapter IV of the Constitution is not initiated in accordance with the due process of law. The Learned Attorney General then submitted that the appellant’s main grouse is against the mode of voting in the 2013 Ebonyi Local Government Elections, that the other complains are ancillary to the challenge of the validity of S. 5(1) of the Ebonyi State Independent Electoral Law and that he is unable to see where S. 5 (1) of the said Law which provides for mode of voting is inconsistent with S. 37 of the Constitution.

The Learned Attorney General further argued that the right to vote and the mode of voting in secret is not a fundamental right provided in Chapter IV of the constitution and that the case of AGBAKOBA VS. D.G SSS(supra) is distinguishable from the present case. According to the Learned Attorney General, while that case involved complain of deprivation of the fundamental right to freedom of movement contained in Chapter IV of the Constitution, in the present case the appellant is not prevented from exercising his right to vote, assuming but without conceding that such a right is contained in Chapter IV of the Constitution. The Learned Attorney General also distinguished the case of MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL VS. OKONKWO (supra) from the present case, arguing that in that other case, the Supreme Court held that a patient had a right to object to an unjustified intrusion and unauthorized invasion of his person or body, in the present case the appellant is not compelled to vote for a particular candidate but rather that the voting should be done using the mode provided by a valid law, its alleged inconsistency notwithstanding.

The Learned Attorney General relying on the decision of this court in AKINLOLA VS. UNILORIN (2004)11 NWLR (PT 885)616 argued that the complain about the mode of voting by open ballot as being a violation of the appellant’s right to privacy is at best ancillary or incidental to the main complain that S. 5 of the Ebonyi State Electoral (Amended)Law (supra) is inconsistent with S. 52 of the Electoral Act 2010 (as amended) and that since this main claim cannot be brought by means of the Fundamental Right Enforcement Procedure Rules, the trial court cannot adjudicate on the incidental issue of mode of voting in the election.

I will now consider the merit of the above arguments by Learned Counsel to both sides
Let me start with the question of which of the reliefs claimed for by the appellant in his originating motion at the trial constitute the primary relief(s) and which constitute the incidental ones.

The exact of the reliefs as stated in the statutory statement in support of his motion is already reproduced at page 3 of this judgment. It is glaring from those reliefs, the affidavit in support of the motion and the documents attached to and exhibited with the affidavit, the appellant’s final address at the trial court, that his main or principal complain is that by virtue of his fundamental right to privacy of the citizen guaranteed by S. 37 of the 1999 Constitution, he is entitled to the privacy of his decision as to which candidate he has chosen to vote for and therefore compelling him to vote openly by queuing in front of the posters carrying the portrait of the candidate of his choice, removes the privacy of his decision and choice of candidate and exposes it to public attention, knowledge and intrusion and violates his right to privacy of the citizen as enshrined in S. 37 of the 1999 Constitution. Reliefs A and B of the reliefs applied for by the appellant relate to this complain and therefore constitute the primary or principal reliefs claimed by the appellant.

The claim for reliefs C, E and F are incidental to the primary reliefs because the success or failure of the claim for them will depend on the success or failure of the claim for reliefs, A and B. If it is held that the right to privacy of citizens in S 37 1999 Constitution does not entitle the appellant to the secrecy or privacy of his decision on choice of candidate and who he voted for, then his claim for reliefs C, E and F are bound to fail. The claim for reliefs C, E and F cannot be determined independent of the claim for reliefs A and B. If the right to privacy of citizens vested in him by S. 37 of the Constitution is held to include his right to vote in secret, then it follows that S. 5(1) and paragraph 21 of the first schedule of the Ebonyi State Electoral (Amendment) and Related Matters Law 2010 will be inconsistent with the provision of S. 37 of the 1999 Constitution. A primary or main relief in a case is one that is not dependent on any other relief claimed therein for its determination. It relates to a central or primary question in the case. An incidental or secondary relief is one that is dependent on another relief for its determination and deals with the questions arising from the primary question.
Since reliefs A and B which are for the enforcement of the appellant’s right to privacy of citizen are the principal claims, the claim for reliefs C, E and F which are incidental to them, were rightly brought along with the claim for reliefs A and B under the Fundamental Rights Enforcement Procedure Rules and were therefore initiated in accordance with the due process of law. The law is settled that a group of reliefs can be claimed for under the Fundamental Rights Enforcement Procedure Rules if the principal relief amongst them is one for the enforcement of any of the fundamental rights in chapter IV of the Constitution and the others are merely incidental to the principal ones or mere accompaniments of the principal ones. See ABDULHAMID V. AKAR (2006) ALL FWLR (PT 324) 1191 AT 1209, (SC) AND UNILORIN V. OLUWADARE (2006) 27 NSCQR 18.

I will now consider the central controversy of whether the applicant, by virtue of his fundamental right to privacy of a citizen vested on him by S. 37 of the 1999 Constitution is entitled to the privacy of his decision as to which candidate he has chosen to vote for and whether requiring or compelling him to queue in front of the posters carrying the portrait of the candidate of his choice violates his right to privacy of citizen given to him by S. 37 of the Constitution.

These questions throw up another question of what is the scope of the right to privacy as provided for in S. 37 of the 1999 constitution. The trial court held that “the right to privacy contemplates right to privacy at home, privacy of one’s communication, privacy in private family life and matters incidental thereto. It is not right to privacy in every activity under the sun.” This view of the trial court does not correctly represent all the categories of that right as expressly stated in S. 37 of the 1999 Constitution. It excludes the privacy of citizens and includes the privacy of family life.

1. The privacy of citizens

2. The privacy of their homes

3. The privacy of their correspondence

4. The privacy of their telephone conversations

5. The privacy of their telegraphic communication.

The trial court in stating the scope of the said right, listed the aspects of privacy S.37 contemplates as follows-

1. Privacy at home

2. Privacy of one’s communication

3. Privacy in private family and matters incidental thereto.

The appellant was entitled to the privacy of his decision to vote for a particular candidate, his choice of that candidate and his casting his vote for that candidate. Therefore requiring or compelling him to vote openly in the public watch and knowledge by queuing in front of the poster carrying the portrait of the candidate he has decided to vote for intrudes into, interferes with, and invades the privacy of his said decision, choice and voting, completely removing that privacy, therefore amounting to a clear violation of his fundamental right to the privacy of a citizen guaranteed him and protected by S.37 of the 1999 Constitution. The decision of the trial court that it does not see how making the appellant to vote publicly violates his privacy is therefore clearly wrong.
The trial Court after holding that the right to vote in private or secretly is not a fundamental right and that requiring the appellant or voter to vote openly in the public view does not violate his right to privacy as enshrined in S.37 of the 1999 Constitution, stated that “I will therefore uphold the notice of Preliminary Objection and that being the case will not go into the substantive motion”. The trial Court earlier in its ruling, after briefly restating the addresses of Learned counsel for both sides on both the objection and substantive motion, directed itself thus- “Since this is a fundamental right matter, this Court decided to take the substantive motion together with the preliminary objection , but I will consider the preliminary objection first. If it is upheld, I will dismiss this matter without going into the substantive motion. If not, I will proceed to consider the substantive motion.”

It is glaring from the concluding part of the ruling of the trial court reproduced above, that it believed that it determined only the preliminary objection, and having upheld it on the third ground of the objection, then there was no need to consider the substantive motion. This belief is not correct. What the trial Court determined is in effect and substance not just the preliminary objection, but the heart and merit of the substantive motion as well. The central and primary question in the case of the appellant as I had held herein, is whether he is entitled to the privacy of his choice of candidate to vote for by virtue of S.37 of the 1999 Constitution or whether the privacy of his vote for a candidate of his choice is part of the right of privacy of citizen vested in him by S. 37 of the constitution. All other questions depended on this question for their determination one way or the other. It is clear from the portion of the ruling of the trial court reproduced at pages 6-7 of this judgment that it was this same question that the trial court also determined as the 3rd ground of the preliminary objection. So, the holding of the trial court that the Open Voting System of requiring voters to queue in front of the poster bearing the portrait of the candidate of their choice does not violate the right to privacy provided for in section 37 of the constitution or that the privacy of the citizens choice of the candidate he or she intends to vote for or voted for determined both the said third ground of the preliminary objection and the central and primary question of the merit of the case presented in the substantive motion. This holding clearly determined all other questions deriving from it except the question of the relationship between section 5 (1) of the Ebonyi State Electoral (Amendment) and Related Matters Law 2010 and S. 52 of the Electoral Act, 2010 which the trial had held cannot to be brought to court by means of the Fundamental Rights Enforcement Procedure Rules. So, it is clear from the ruling of the trial court that there was nothing left to be considered in the substantive motion. The implication of the trial court’s decision that the appellant’s fundamental right to privacy in section 37 of the constitution does not give him the right to vote privately or in secret is that the appellant did not prove his entitlement to reliefs A, B, C, E and F claimed in his application on the basis that the privacy of his vote in the local Government Election was part of his fundamental right to privacy. Such a holding does not render the procedure used for seeking the reliefs irregular. The regularity of the mode of bringing a case to court is determined by the reliefs and not the failure or success in proving the merit of those reliefs. The entitlement to the reliefs has nothing to do with the procedure for seeking it. A person’s claim for the enforcement of his fundamental right which he alleges has been violated, can properly be brought by way of the Fundamental Rights Enforcement Rules. If after the conclusion of hearing of his case and the court finds that his fundamental right is not violated, it is wrong to hold that the consequence is that the case should not have been brought by Fundamental Rights Enforcement Procedure. Such a holding is not valid. The proper decision is that the case is not proved and an order dismissing same. The trial court was therefore right to have dismissed the motion because the merit of the central and principal question of the case had been determined.

The arguments of both parties in this appeal addressed the merit of the case as was decided by the trial court. In this appeal, the Learned Attorney General for the 1st, 2nd and 3rd respondents has argued that assuming without conceding that S.5(1) of the Ebonyi State Electoral (Amendment) Law 2010 limits or derogates from the right of privacy in S. 37 of the Constitution, S. 45 of the Constitution allows such derogation as it is reasonably justified in a democratic society in the interest of the public safety and order and to protect the rights of other persons. Learned counsel for the appellants argued that the right to privacy is not absolute but can be violated only in accordance with S. 45 of the 1999 constitution in the interest of defence, public safety, order, morality and health and for the purpose of and that protecting the right of others. The decision of the 1st respondent to compel the appellant and other voters to vote by queuing publicly behind the candidate of their choice is not in the interest of defence or public safety or public order or public morality or public health or for the purpose of protecting the rights and freedom of other persons.

It is beyond argument that if the trial court had held the view that the appellant is entitled to the privacy of his vote in the Local Government Election as part of his right to privacy given him by S. 37 of the Constitution and that therefore the Open Ballot System which requires him to vote openly by queuing in front of a poster bearing the portrait of a candidate of his choice violates his said right to privacy, that would have amounted to determining and pronouncing the appellant’s claim for reliefs A and B as proved and successful. In that event, it would have proceeded to determine the incidental reliefs claimed on the basis of the above two reliefs or as accompanying the said two reliefs.

I had held in this judgment that the appellant is entitled to the privacy or secrecy of his choice to vote a particular candidate in the said local Government Election by virtue of and as part of the compendium of his right to privacy of a citizen in S. 37 of the Constitution and that therefore the Open Ballot System which requires him to vote openly by queuing in front of a poster bearing the portrait of the candidate of his choice violates his said right to privacy. The result of this holding is that the appellant’s claim for reliefs A and B succeeds. I will therefore proceed now to consider his claims for the reliefs incidental to reliefs A and B or accompanying them.

I will start with the claim for relief C which is for “Declaration that section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 violates the rights of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the constitution of Nigeria, 1999 (as altered) and as such, ineffectual”.

As earlier held herein, S. 37 of the 1999 Constitution guarantees and protects the appellant’s right to the privacy of his decision to vote for a particular candidate and his vote for that candidate in an election including the Ebonyi State local Government Election. Therefore S. 5 (1) of and paragraph 21 (2) to (5) of the 1st schedule of the Ebonyi State Electoral (Amendment) and Related Matters Law 2010 which provide for voting by open ballot system by requiring a voter to vote for a candidate by queuing in front of the poster bearing the portrait of the said candidate in the full public view, deprives the appellant the right to privacy of his decision to vote for a candidate and his vote for that candidate and is therefore inconsistent with S. 37 of the 1999 Constitution.
This inconsistency renders it void by virtue of S. 1(3) of the 1999 Constitution which provides that “if any other law is in consistent with the provisions of this constitution, the Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.

However, S. 45 (1) of the same 1999 Constitution provides that “nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justified in a democratic society-

(a) In the interest of defence, public safety, public order, public morality or public health; or

(b) For the purpose of protecting the rights and freedom of other persons.

The implication of the co-existence of these two provisions in the 1999 Constitution is that if a law derogates from any of sections 37, 38, 39, 40 and 41 of the Constitution and thereby becomes inconsistent with that provision and the derogation and inconsistency can be reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of others, then that inconsistency will not void the said law. S. 45 (1) of the 1999 Constitution operates to exclude the operation of S. 1 (3) of the Constitution where the inconsistency is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of others. Another effect of S. 45 (1) of the Constitution is that the rights in sections 37, 38, 39, 40 and 41 are not absolute and can be restricted by law so far as the restriction is reasonably justified in a democratic society in the public interest and for the protection of the rights of the other persons. See Osawe & Ors V Registrar of Trade Union (1985) 5 SC 343.

Both sides have deposed to facts in their respective affidavits justifying their respective positions. The appellant, in his affidavit in support of his application deposed in paragraphs 16, 17, 18, 19, and 20 therein that

16. That this will not only invade my privacy but will also endanger my life and the lives of other voters.

17. That the Peoples Democratic Party (PDP), Ebonyi State Chapter, recently conducted her primary election for the forth coming Local Government Election using open ballot system and this led to loss of lives, destruction of property and wounding of many people.

18. That in Amaeke Ward A of Afikpo South Local Government Area, Ebonyi State, one Kalu Ogbu Agwu was killed as a result of the confusion that arose from an attempt by those who saw that they were losing to scatter the line where people queued behind the candidates of their choice. C.T.C. of pages 1, 3 and 13 of Ebonyi State Voice Newspaper are hereby annexed and marked Exhibits “PN 5A, 5B & 5C” (pls. see the marked portions)

19. That in Effium Ward of Ohaukwu Local Government Area, one Mr. Ezekiel was given a serious matchet cut on his head as a result of the confusion and misunderstanding that arose from the counting of those who queued behind the candidates of their choice. A C.T.C. of page 13 of Citizens’ Advocate Newspaper based in Ebonyi State is hereby annexed and marked Exhibit “PN 6” (see the marked portions)

20. That if open secret ballot system is used, people will not know whether they are losing or not until the ballot papers are counted.

He attached exhibits PN5A, PN5B and PN5C being newspaper reports of the crises during the PDP nominees in the state.

The counter affidavit deposed to and filed on behalf of the 1st respondent by Paul Awada, Learned Director of Civil Litigation in the Justice, Ebonyi State avers in paragraphs 5, 6, 7, 8 and 9 therein that-

5. That the Local Government Election conducted by the 1st Respondent/Applicant in 2010 under the open ballot system was adjudged the freest and fairest in the history of Local Government Elections in the State.

6. That voting in an election using the open secret system is not only conducted in public places but in the full glare of all present.

7. That I know as a fact that the unsavoury events that occurred during the last PDP primaries were occasioned by intra-party dispute and not as a result of the open ballot system.

8. That the results in open ballot system elections are only known after counting of voters on the queue with utmost transparency.

9.That I know as a fact that the open ballot system of election was used in the 1993 General Elections in Nigeria and adjudged both locally and internationally as the freest and fairest in the history of Nigeria.

The Learned Attorney General argued that -“Assuming without conceding that the mode of voting prescribed in section 5 of the Ebonyi State Independent Electoral Commission Law, 2010 (as amended) constituted an infringement of the appellant’s right, it is our submission that the public challenge occasioned by secret ballot where candidates mandates were manipulated with impunity provides a veritable justification for the introduction of Open Ballot System of voting. This calls to aid the exception provided in section 45 of the Constitution, to wit; in the interest of public safety, public order or for the purpose protecting the right and freedom of other persons. These rights and freedom include the right to protect one’s legitimate electoral mandate from undue manipulation occasioned by the Secret Ballot System of voting.

Based on the forgoing, it is submitted that even the rights envisaged in Cap. IV of the Constitution are not absolute as there have to be exercised within the limits of section 45 of the Constitution. See NUEE VS. BPE (2010) ALL FWLR (PT.525) 201. ”

Learned Counsel for the appellant argued that compelling voters to vote by queuing publicly behind the candidate of their choice is not in the interest of defence, public safety or public order or public morality or public health or for the purpose of protecting the rights and freedom of other persons. He argued further that exposing the thought and choice of whom he is voting for to public observation, exposure and scrutiny renders it unprotected and susceptible to unjustified intrusion and interference. According to Learned Counsel, it “could expose their lives to danger as they could become targets to political thugs of those they voted against “. To illustrate this point, he narrated that “it was this situation that led to the deaths and destructions that characterized the recent PDP primaries in Ebonyi State that was conducted via open ballot system. Those who saw that they were losing caused confusion and shooting ensued, leading to deaths and destruction”. He concluded that open ballot system “is archaic, primitive and risky. Our country should be progressing and not retrogressing. It is worthy of note that throughout the whole country, Nigeria, it is only in Ebonyi State that people are forced to queue publicly behind the candidate or photograph of the candidate of their choice during an election. Majority of the voters who do not want to be subjected to such violation of their privacy stay away from the elections, thereby being disenfranchised by this policy and action of the 1st respondent.”

Let me now consider the merit of the above arguments from both sides. It is obvious from the provisions of S. 45 (1) of the Constitution that it is the purpose which a law intends or seeks to achieve or the mischief it seeks to avoid together with the existing factual situation that prompted its making that will determine if its restriction of any of the fundamental rights in Ss 37, 38, 39, 40 and 41 of the 1999 Constitution is reasonably justifiable in a democratic society. This purpose or mischief may be expressly stated in the law in issue. If it is not expressly stated therein, it can be implied from the letters and spirit of the of the law through the process of its interpretation.

I have serenely and carefully read the entire Ebonyi State Electoral (Amendment) and Related Matters Law No. 5 of 2010: It amended the Ebonyi State Electoral and Related Matters Law No. 9 of 2007 to abolish voting secretly or in private (Secret Ballot) and replace it with voting openly by queuing in front of the poster carrying the portrait of or the candidate a voter is voting for (Open Ballot). This is clearly stated in Ss 5 (1), 20 and 21 of the said amendment law.

S. 5 (1) provides that “that section 20 (1) and (2) of the Law No. 009 of 2007 is hereby repealed. The section is substituted as follows; – 1. Voting should be by open ballot system and in accordance with the procedure set out in the 1st schedule to this law or as may be filed by the commission.”

S. 20 provides that “the principal law is repealed to the extent that wherever in any section of this law, the word open or secret ballot occurs, it is substituted with open ballot and where secret ballot occurs, it is substituted with open ballot and where ballot paper or box occurs shall be substituted with open voting or counting.” S. 21 of the same Act provides that “the object and purpose of this law is to repeal open secret ballot and provide for Open Ballot System of election in the Local Government Elections in the State.”

Paragraph 21(2),(3),(4) and (5) of the First Schedule to the said amendment law laid down the procedure for open ballot as follows-

“After compliance with the provisions of the paragraph 20 of this schedule, the presiding officer shall:

1. Announce the commencement of voting,

2. Request accredited voters to line up in front of the posters carrying the portrait of the candidate of their choice;

3. The presiding officer assisted by the poll clerk shall loudly count the number of accredited voters in the queue voting for each candidate one at a time.

4. Separate any queue between men and women if, the area of the ward or Local Government Area, the culture is such that it does not permit the mingling of men and women in the same queue.

5. Request security agents or poll orderlies to stand at the end of the queue behind the last accredited voter in the line to prevent those not accredited from sneaking into the line.

6. Loudly announce the number of voters counted, enter the votes scored by each candidate in a result form in words and in figures;”

The Ebonyi State Electoral (Amendment) Law, No. 25 of 2010 did not state expressly or by implication the purpose the amendment seeks to achieve or the mischief it seeks to prevent. The 1st, 2nd and 3rd respondents did not adduce evidence of any existing or emerging factual situation that warranted or caused the amendment or that shows the purpose the amendment seeks to achieve or the mischief it seeks to prevent. The counter affidavit deposed to by Paul Awada Esq Director of Civil Litigation, Ministry of Justice, Ebonyi State and a co-counsel in this case on behalf of the 1st, 2nd and 3rd respondents does not contain any deposition of any of the above facts to justify the amendment. There is nothing in the affidavit even suggesting that the amendment is in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.

The counter affidavit generally denied paragraphs 9, 15 to 25 (a) and (b) of the applicant’s affidavit and then stated that the 2010 Ebonyi State Local Government Elections and the 1993 National General Elections in which voting was by open ballot were adjudged the freest and fairest in history, that the results of open voting are known only after voting, voting by open secret ballot is also conducted in public places in the full glare of those present, that the unsavoury events in the last PDP primaries were caused by intra-party disputes and not the result of voting openly and that there were no episodes of reprisals after the 2010 Local Government Election using the Open Ballot System.

These facts do not contain any rational connection between them and the need for the amendment. There is no fact in the counter affidavit proving or even suggesting that the open secret ballot system provided for in the Ebonyi State Electoral and Related Matters Law, No. 9 of 2007 had become impossible, or that a free and fair election had become impossible by that process or under the law, or that the open secret ballot was no longer in the interest of the public or was violating the right and freedom of other persons. In other words the counter affidavit did not show that a free and fair election could not be achieved without depriving the voter the right to the privacy of his vote.

By virtue of S.45(1) of the 1999 constitution, it cannot be presumed that the provision of a law limiting any of the fundamental rights in Ss 37, 38, 39, 40 and 41 is reasonable in a democratic society. S.45(1) of the 1999 Constitution excludes the operation of the general presumption that every legislation is made in the public interest, once it limits any of the fundamental rights protected in the sections listed therein.

The party asserting that the restriction of a fundamental right is reasonably justifiable in a democratic society, must elicit evidence of facts showing the existing circumstances that makes the restriction reasonable in the public interest or for the purpose of protecting the rights and freedom of other persons. The respondent who asserts that the provisions of the Ebonyi State Electoral (Amendment) Law, 2010, requiring a voter to vote openly under the watch of other persons is reasonably justified in a democratic society in the public interest or for the purpose of protecting the rights and freedom of other persons has not elicited in their counter affidavit any evidence of any circumstances that supports that assertion.

The argument of the Learned Attorney General that “the public challenge occasioned by secret ballot where candidates’ mandates were manipulated with impunity provides a veritable justification for the introduction of open ballot system of voting” has no evidential foundation. It is not clear what the Learned Attorney General meant by the term “public challenge”. If it means a public interest protection action like an action popular is (public action) or class action challenging election by secret ballot or open secret ballot, the 2nd and 3rd respondents’ counter-affidavit does not contain any evidence showing or suggesting the existence of such challenge. If the term means that individual members of the public by civil actions in court privately challenged the secret ballot method of voting to protect their personal right, the said counter affidavit equally contains no evidence of such a challenge. If it means that there was public protest against that method of voting, there is no evidence suggesting so.

The allegation that candidates’ mandates were manipulated with impunity in elections by secret ballot is not supported by any part of the counter-affidavit of the 1st, 2nd and 3rd respondents. There is no evidence by any candidate in the Local Government Elections where voting was by secret ballot held under the Ebonyi State Electoral and Related Matters Law, 2007, alleging that his electoral mandate was unduly manipulated for the reason that the voting was by secret ballot or for any reason at all. Therefore, there is no basis for the further argument of the Learned Attorney General that S.45 (1) of the constitution applies here “in the interest of public safety, public order or for the purpose of protecting the right and freedom of other persons and that these rights and freedom include the right to protect ones legitimate electoral mandate from undue manipulation occasioned by the secret ballot system of voting”. The address of the Learned Attorney General is based on allegation of events not contained in any evidence in the record of this appeal. It is trite law that such allegations of events in the address of counsel are not valid for consideration. Address of counsel on factual issues must be based on the facts proven by evidence contained in the record before the court. Counsel cannot while addressing the court allege facts not contained in the evidence before the court and address the court on the basis of such unproven allegation of facts. Any argument on the basis of such unproven allegation of fact is clearly speculative and baseless.

The term “candidates’ mandates” or “electoral mandate” used by the Learned Attorney General in the above argument presupposes that voting had taken place, votes counted and results declared and a candidate announced as winning by a majority of votes. The argument that the candidates mandates or electoral mandates were manipulated means that it was certain from the electoral process that they had secured the mandate, but that it was manipulated following the announcement of a candidate as winner. Black’s Law Dictionary, 9th Edition at page 1047 defines mandate in politics “as the electorates overwhelming show of approval for a given political candidate or platform”. The same Dictionary at page 596 defines an “electoral process” as the method by which a person is elected to public office in a democratic society”. So an electoral mandate means the electorates’ overwhelming show of approval for a given political candidate or platform following the majority votes cast counted in an election to public office in a democratic society. The candidates mandate comes after the declaration of results of an election which comes after the counting of votes following voting by voters.

The argument of Learned Attorney General failed to expose how the electoral mandates were manipulated, did not complain that it was the voting that was manipulated and did not show how secret ballot renders the electoral mandate susceptible to manipulation. The argument begs or raises many questions without answers.

The 1st, 2nd, and 3rd respondents failed to show that the institutions responsible for the administration and enforcement of the electoral law have been efficient and effective in enforcing the law, but that their diligent efforts have not been able to prevent the manipulation of electoral mandates resulting from the electoral process involving open secret ballot because the peculiar nature of the method of voting renders it inherently manipulable. They also have not shown why the manipulations were carried out with impunity and whether the impunity was being caused by the method of voting in the sense that it makes prevention of manipulation impossible. It is beyond argument that the major cause of impunity for breach of penal and electoral statutes is lack of the will to enforce the laws and inefficient enforcement of such laws. It is also beyond argument that the habitual non-compliance with any electoral laws during electoral processes is mainly caused by the failure of the agencies responsible for the enforcement of such law to insist on strict enforcement of and compliance with the laws. Impunity for manipulation of electoral mandates cannot be caused by the method of voting or the electoral process. Impunity is caused by the pervading habitual disregard and disobedience of electoral laws and the lack of accountability for such disobedience.
Whatever method of voting is adopted, if the electoral law is not strictly complied with or enforced and if there is no effective process to ensure strict accountability for violations of the electoral law, violators of the law will glory in the undeserved victories resulting from their infamy with impunity. It is glaring from contemporary experience that the amendment of an electoral law is not a solution to problems in the electoral process caused by lack of effective and efficient enforcement of the electoral law by the institutions responsible for such enforcement.

It is clear from the foregoing that the 1st, 2nd and 3rd respondents did not discharge the burden on them to show that S.5 (1) and paragraph 21(2), (3), (4) and (5) of the Ebonyi State Electoral (Amendment) and Related Matters Law, 2010 was reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedoms of other persons.
The legal consequence of this failure of the 1st, 2nd and 3rd respondents to show that the Ebonyi State Electoral (Amendment) Law is reasonably justifiable in a democratic society in the public interest or for the purpose of protecting the right of other persons is that the appellant’s duty to rebut same never arose. In other words, the appellant had no duty to show that it was not so justifiable. Even though the appellant had no such duty, he nevertheless deposed to facts in his affidavit showing that open ballot is not in the interest of an open democratic society and exposes voters to interference with their rights to vote a candidate of their choice and their lives to danger for openly voting a candidate of their choice. In paragraphs 17, 18 and 19 of their affidavit in support of the motion on notice, the appellant highlighted some experiences from the use of the open ballot system in conducting the Peoples Democratic Party Primaries to select the party’s candidates for the 2013 Local Government Election. These depositions are already reproduced herein at pages 35-36. He supported these depositions with Exhibits PN 5A, PN5B and PN5C newspaper reports of the events.

It is glaring from the above depositions that the problems arose from the fact that the rival candidate was able to know who is voting or not voting for him or her during voting and is therefore in a position to determine if he or she is losing or winning from the length of the queues behind each candidate. It is obvious that if the voter’s vote was secret, the candidates would not be able to know or determine who is voting or not voting for them and the likely result during voting. These depositions highlight that in elections by open ballot, a candidate or his supporters who find from the length of the queue behind him that he has lost that election in the polling unit, can violently scatter all the queues and disrupt the voting and that in such situations, people can be killed or wounded and properties destroyed. The depositions also highlight that a voter can suffer attack from the supporters of a candidate he did not vote for and that some voters, for fear of such reprisals or to avoid incurring the ill-feeling of a person they did not vote for, may choose not to vote and thereby become disenfranchised.
The 1st, 2nd and 3rd respondents in their counter-affidavit did not specifically deny each of the facts deposed in paragraphs 17, 18 and 19 of the appellant’s affidavit and merely stated that the depositions are false. They, however, in paragraph 7 of the counter-affidavit admitted that the events did occur during the said primaries, but that they were caused by intra-party dispute and not the method of voting by open ballot. The exact deposition in paragraph 7 states thus -“That I know as a fact that the unsavory events that occurred during the last PDP primaries were occasioned by intra-party dispute and not as a result of the open ballot system”.

Generally, laws taking away or restricting existing rights are construed Strictissima Juris. Therefore, where a provision of the constitution allows that a fundamental or constitutional right it has given to a person can be restricted by a law under certain circumstances, the law restricting such right must be applied strictly in accordance with the provision of the constitution permitting the restriction. The court must ensure that the restriction of a person’s right by that law completely complies with the requirements prescribed by the provision of the constitution permitting that restriction. The restriction of the appellant’s right to his privacy as a citizen by S. 5 (1) and paragraph 21 (2), (3), (4) and (5) of the first schedule to Ebonyi State Electoral (Amendment) and Related Matters Law 2010 removing the privacy of his choice of candidate to vote for and the vote for that candidate has not been shown to have complied with S. 45 (1) of the 1999 Constitution.

In the light of the foregoing, I hold that S. 5 (1) and paragraph 21 (2), (3), (4) and (5) of the 1st schedule to the Ebonyi State Electoral (Amendment) Law 2010 and all provisions therein providing for voting by open ballot are void ab initio for being inconsistent with S. 37 of the 1999 Constitution and for not complying with S 45 (1) of the same Constitution.

In the light of the foregoing, I resolve all the issues in this appeal in favour of the appellant. On the whole this appeal succeeds and is allowed. The part of the ruling of the Federal High Court sitting at Abakaliki, per M.A. Oyetenu J. in suit No.FHC/AI/CS/38/2013 delivered on 20th September, 2013 upholding the 1st, 2nd and 3rd respondents’ preliminary objection and dismissing the appellant’s suit is hereby set aside.

The appellant’s application by motion on notice for the enforcement of his fundamental rights is hereby granted.

The appellant’s claim for reliefs A, B and C are hereby granted. Accordingly, it is hereby declared as follows-

A. that the applicant and other voters in Ebonyi State are entitled to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered).

B. that the open ballot system of voting, that is queuing in front of the poster bearing the portrait of the candidate of a voter’s choice in the full glare of everybody constitutes a violation of the right of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the 1999 constitution of Nigeria (as altered).

C. that section 5 (1) of Ebonyi State Electoral (Amendment) and Other Related Matters Law No. 005 of 2010 violates the rights of the applicant and other voters to the privacy of who they vote for in an election as guaranteed by section 37 of the constitution of Nigeria, 1999 (as altered) and as such, is ineffectual.

The claim for relief D was struck out by the trial court on the ground that it could not be brought by means of the fundamental Rights Procedure Rules. There is no ground of this appeal complaining against this striking out. The Appellant by not appealing against this decision striking out this claim for relief D, the appellant accepted it as correct, subsisting and binding on him. It is therefore not a subject of this appeal. See Biariko & Ors V Edeh-Ogwuile & Ors (2001) 4 SC (PT II) 96

What is left for me to consider now is the claim for reliefs E and F.
Relief E claims for An order of perpetual injunction restraining the 1st respondent from using open ballot system of voting to conduct the Local Government Election slated for the 28th September, 2013 or any other Local Government Election.

The appellant seeks for an order of perpetual injunction to restrain two events as follows-

1. The use of open ballot system of voting to conduct the Local Government Elections on 28-9-2013

2. The use of open ballot system of voting to conduct any other Local Government Elections.

The first event has since taken place on 28 -9 -2013. So it can no longer be restrained. It is trite law that an injunction cannot lie to restrain an event that has already taken place or a completed act. See John Holt (Nig) Ltd & Anor V Holts African Workers Union of Nigeria & Cameroon (1993) 2 SCNLR 383 and Anaekwe V Mashasha (2001) 12 NWLR (Pt 726) 70.So the claim for an order of perpetual injunction to restrain the 1st respondent from using the open ballot system of voting to conduct the Local Government Elections on 28 – 9 -2013 is now redundant and is therefore hereby refused and dismissed.

Since reliefs A, B and C are successful, and it is obvious that the Ebonyi State Electoral (Amendment) and Related Matters Law 2010 applies to all Local Government Elections in Ebonyi State and its application is not limited to the 2013 Local Government Elections, it is necessary to restrain its use for the conduct of future Local Government Elections so as not to render meaningless the grant of reliefs A, B and C.

It is hereby ordered that the 1st respondent is perpetually restrained from using the open ballot system of voting to conduct any other Local Government Elections in Ebonyi State. It shall continue using the Open Secret Method of voting prescribed in the Ebonyi State Electoral and Related Matters Law No. 9 of 2007 in future elections.

The appellant in relief F claimed for An order of perpetual injunction restraining the 4th respondent from making available the voter’s register to the 1st respondent for the purposes of using open ballot system to conduct the election. Having granted relief F I do not consider it necessary to consider the claim for this relief.

Let me observe here that the appellant did not seek for a determination of the status of the elections of 28th September, 2013 held under the 2010 amendment Law. So I cannot make any pronouncement on it.
The 1st, 2nd and 3rd respondents shall pay cost of N100,000 naira to the appellant.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading before now, the judgment delivered by my learned brother JUSTICE E.A. AGIM. (JCA).
I agree with the reasoning and conclusions therein.

SAIDU TANKO HUSSAINI, J.C.A.: I have had the advantage of reading the draft copy of the well articulated judgment just delivered by my learned brother, Emmanuel Akomaye Agim JCA. I agree with his reasoning and conclusions. I also agree with the orders made therein.

Appearances

Godwin Onwusi Esq.For Appellant

AND

Dr Ben O. Igwenyi, MON, Attorney-General of Ebonyi State, with
P. M. Awada, Esq. Director of Civil Litigation, Ministry of Justice, Ebonyi State and
I. M. Nwidagu Esq. SC Ministry of Justice Ebonyi State for the 1st, 2nd and 3rd Respondents
Mrs. Nkiru Frank-Megwa for the 4th RespondentsFor Respondent

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