MR. CYRIACUS NJOKU v. DR. GOODLUCK JONATHAN & ORS
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of March, 2015
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
MR. CYRIACUS NJOKU Appellant(s)
1. DR. GOODLUCK JONATHAN
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja (hereinafter referred to as the trial court), delivered on the 1st of March, 2013, wherein the learned trial judge dismissed the case of the appellant.
The facts are that the 1st respondent was elected as the Vice President of the Federal Republic of Nigeria and Umaru Musa Yar’adua was elected as the President of Nigeria in a joint election they stood, on the 21st of April, 2007. They were then sworn into their respective offices, and they began to discharge their various duties. Upon the demise of President Umaru Yar’adua on the 5th of May, 2010, the 1st respondent was sworn into office, as the President of The Federal Republic of Nigeria, in accordance with section 146(1) of the 1999 Constitution of the Federal Republic of Nigeria, on the 6th of May, 2010, to complete the tenure of President Umaru Yar’adua. After completing the term, the 1st respondent stood for election in April 2011, and he was elected as the President of the Federal Republic of Nigeria and was sworn in that capacity, on the 29th of May, 2011.
On the 16th of March, 2012, the Punch Newspaper carried a report of a statement credited to one Dr. Reuben Abati, the Senior Special Adviser on Media and Publicity to the 1st respondent, as saying that the 1st respondent is “in his first term in office”, thus implying entitlement for a second term as President, for the 1st respondent.
The appellant as the plaintiff in the trial court, who had nursed the ambition to contest for the office of the President of the Federal Republic of Nigeria under the umbrella of the Peoples Democratic Party (the 2nd respondent herein), felt aggrieved by the Punch Newspaper report, and so approached the trial court, against the respondents, by way of an Originating Summons on the 20th of March, 2012, supported by an Affidavit, a Further Affidavit and three exhibits. He sought for the following reliefs –
1. A DECLARATION that the tenure of office as President by Goodluck Jonathan i.e. 1st Defendant, began on May 6, 2010 when his first term began and his two terms shall end on May 29, 2015 after taking his second Oath on May 29, 2011.
2. A DECLARATION that by virtue of section 136(1)(b) of the Constitution of the Federal Republic of Nigeria no Person (including the 1st Defendant) shall take the Oath of allegiance and the Oath of office prescribed to in the Seventh Schedule to this Constitution more than twice.
3. AN ORDER OF INJUNCTION restraining the 1st Defendant from further contesting or attempting to vie for the office of the President of the Federal Republic of Nigeria after May 29, 2015 when his tenure shall by the Nigeria Constitution aforstated end.
4. AN ORDER OF INJUNCTION restraining the 2nd Defendant from further sponsoring or attempting to sponsor the 1st Defendant as candidate for election to the office of the President in the 2015 Presidential election after the expiration of his two-terms on May 29, 2015.
5. AN ORDER DIRECTING (Sic) the 3rd Defendant from accepting the name of the 1st Defendant where sponsored by his party again to run for the office of the President in the 2015 Presidential elections to be supervised and conducted by the 3rd Defendant.
The 1st and 2nd respondents as 1st and 2nd defendants at the trial court, filed counter-affidavits in respect of the Originating Summons and also filed Preliminary Objections, challenging the competence of the Suit, as disclosing no cause of action, the jurisdiction of the court to determine it and the locus standi of the appellant to institute it. The trial court was of the view that the Preliminary Objections had merit and it upheld them. The Suit was therefore struck out for the absence of any cause of action and for the lack of locus standi on the part of the appellant to commence it. It still went ahead to determine the merit of the case, and at the end, found that the 1st respondent is in his first tenure of 4 years as the elected President of the Federal Republic of Nigeria and then went ahead to make consequential orders.
The Parties herein, have filed their written briefs of argument. The appellant’s brief dated the 4th of November, 2014, was filed on the 5th of November, 2014. The 1st respondent’s brief was dated and filed on the 14th November, 2014. The 2nd respondent’s brief was dated and filed on the 17th of November, 2014. The 3rd respondent’s brief was dated and filed on the 18th of February, 2015.
The appellant’s brief, settled by his Counsel O.O. Obono-Obla, identified five issues for determination and they are –
1. Whether the learned trial Judge was right when he held that the Appellant, a Citizen of the Federal Republic of Nigeria; a member and a Presidential Aspirant on the platform of the Peoples Democratic Party (the 2nd Respondent) does not have the locus standi to institute the action before the lower Court and the reliefs claimed by him in the Originating Summons, regard being had to the facts and circumstances of the case?
See Ground 1.
2. Whether the learned trial Judge was right when he held that the Appellant’s case did not disclose a reasonable cause of action? See Ground 2.
3. Whether the learned trial Judge was right when he held that the issue at stake before him was: ‘whether as a result of the death of President Yar’adua and the swearing in of the 1st Defendant who was till that date the Vice President as President for the unexpired period of 4 years tenure of the late President Yar’adua would mean a four years tenure as President by the 1st Defendant? See Ground 3.
4. Whether the learned trial Judge was right when he held that: ‘by the provisions of section 136(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a person shall not be qualified for election to be elected to such office at any two previous elections’ and did this not apply to the case of the 1st Respondent? See Ground 4.
5. Whether the learned trial Judge was right when he held that: ‘…It cannot be said that the 1st Respondent is running his second term or tenure as President. He is running his first term and can aspire to seek for nomination like any other qualified Nigerian to contest election for that office come 2015′? See Ground 5.
The 1st respondent’s brief was settled by A. Okeaya-Inneh SAN and he distilled two Issues for determination. They read –
(i) Whether the learned trial Judge was right in law and on the facts when he held that the plaintiff does not possess the locus standi to institute the action and that his suit does not disclose a reasonable cause of action. (Grounds 1 and 2 of the Notice of Appeal).
(ii) Whether the learned trial Judge was right in law and on the facts when he held that the 1st Respondent is eligible to seek election for another four (4) years in the 2015 Presidential Elections having regard to the provisions of sections 147(1)(b), 135(2)(b) and 318 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended). (Ground 3, 4 and 5 of the Notice of Appeal).
V. Y. Kwon for the 2nd respondent sourced four issues from the five grounds of appeal. They are as follows:-
(1) Was the lower court right in holding that the appellant lacked the locus standi to file the suit subject matter of this appeal?
(2) Was the lower court right in holding that the appellant’s case before it failed to disclose a reasonable cause of action?
(3) Did the lower court misapprehend the case before it? (Ground three).
(4) Was the lower court wrong in holding that given the peculiar facts and circumstances of the case, the 1st respondent is qualified along with other eligible Nigerians to run for the presidency in the 2015 general elections?
(Grounds four and five).
Chief A. A. Awomolo SAN settled the brief of the 3rd respondent and he identified the three Issues for determination to be: –
1. Whether the Appellant has established his locus standi to bring this action with a reasonable cause of action and by so doing, confer on the court the jurisdiction to hear and determine the issues raised for determination (ground 1 and 2 of the Grounds of appeal).
2. Whether the learned trial Judge was correct in law when he held that the provisions of section 135 and 136 of the Constitution of the Federal Republic of Nigeria 1999 with regards to qualification for election at any two previous elections did not apply to the case of the 1st respondent (Ground 4 of the Notice of Appeal).
3. Whether the learned trial Judge was right in holding that the 1st defendant was running his first term in office and can thus legitimately aspire, seek nomination and aspire for the office of the President of the Federal Republic of Nigeria come 2015 and whether this decision has any constitutional implication on 2015 elections. (Ground 3 and 5 of the Notice of Appeal).
Having gone through the grounds of appeal and the reliefs sought in the Originating Summons, it is clear that the two Issues identified by the 1st respondent are clearer and have concisely covered the field. I shall therefore utilise them in determining this appeal.
This issue encompasses issues one and two in the appellant’s brief which were argued together in the brief. Counsel submitted that the trial court was wrong to have held that the appellant did not have locus standi despite the fact that it found that the appellant is a member of the Peoples’ Democratic Party who nursed the ambition of contesting for the Presidential nomination of the party in the 2015 Presidential Election. It was wrong for it to have relied on its holding that the appellant’s suit did not disclose any reasonable cause of action for being speculative. Rather, he opined, the trial court should have relied on the summons and the affidavit in support which showed questions as to his civil right and obligation that had been or were about to be violated.
Counsel referred to the case of ADESANYA V. PRESIDENT OF NIGERIA (1981) 2 NCLR 358 as the locus classicus on locus standi and argued that the attitude of courts to the issue of locus standi has moved away from the narrow and restrictive approach in Adesanya’s case particularly in respect of constitutional matters. He cited and relied on FAWEHIMI VS. AKILU (1987) 4 NWLR (Pt. 67) 797), WILLIAMS VS. DAWODU (1988) 4 NWLR (Pt. 87) 189 AND THOMAS VS. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669 in support. He emphasized that in cases of breach of the Constitution, the trend is for a relaxation of the traditional concept of locus standi. In support, he cited the case of FAWEHINMI VS. PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA (2007) 14 NWLR (1054) 275, 334.
Counsel continued by setting out the factors to be borne in mind in determining a person’s locus standi as laid down in the case of OGUNMOKUN V. MILITARY ADMINISTRATOR OF OSUN STATE (1999) 3 NWLR (594) 201, 268 – 269. He submitted that the appellant met all the requirements therein stated.
He thereafter argued that the appellant had a reasonable cause of action as it had accrued and crystallized on account of the statement of the media adviser to the 1st respondent. He added that the fact that a case is weak or unlikely to succeed is not a ground for striking it out.
On his part, senior counsel for the 1st respondent submitted that the first duty of a plaintiff is to establish the capacity in which he sues and that to ascertain the locus standi of a plaintiff, recourse must be had to the pleadings. He opined that the lower court was right not to act on facts that it found to be speculative and premature. It was his view that the appellant did not show sufficient interest to maintain the action. He referred to BEWAJI VS. OBASANJO (2008) 9 NWLR (1093) 540, 576 and ADESANYA VS. PRESIDENT (SUPRA) and submitted that where a plaintiff seeks to establish a right or interest which he shares with other members of the public, he must show that he has sustained or is in immediate danger of sustaining an injury to himself, which interest or injury is over and above that of the general public. This, he said, the appellant was unable to do.
After quoting in extenso the judgment of the trial court on the issue of cause of action, he submitted that the appellant did not show the 1st respondent’s wrongful act and the consequential damage, and as such, the trial court was right in holding that the suit did not disclose any cause of action against the respondents.
Counsel for the 2nd respondent submitted that the appellant had no special, personal or peculiar interest to be affected by the ambition of the 1st respondent to run for the Presidency. He added that the lower court was therefore right in holding that the appellant lacked locus standi. He also submitted that the lower court was right in holding that the appellant’s case did not disclose a reasonable cause of action. He noted that as at 20/3/2072, the 1st respondent had not obtained the nomination form of the 2nd respondent or any other party and that the 3rd respondent had not yet issued a notice of poll to enable 2nd respondent commence the process of nominating candidates to stand for election. It was his view that Exhibit VRAI did not even say that 1st respondent would contest, thus rendering as speculative whether or not the 1st respondent would contest. He submitted that speculation is not a part of our judicial process.
On his part, Chief A. S. Awomolo (SAN) counsel for the 3rd respondent, submitted that the appellant did not show sufficient interest worthy of being far above any other party member. He relied on LAWAL VS. SALAMI (2002) 2 NWLR (Pt.572) 687, ANOZIE VS. A. G. LAGOS (2010) 15 NWLR (Pt 1216) 207 at 234. He qualified the action of the appellant as being inchoate. He went on to submit that the appellant did not show any cause of action accruable to him and that the best that could be gathered from appellant’s affidavit are intentions, desires and fictional wishes.
The phrase “locus standi” or “standing” refers to the right of a party to appear and be heard on the question before the court.
It denotes legal capacity to institute legal proceedings in a court of law. In other words, the right to or competence to institute proceedings in a court for redress or assertion of a right enforceable at law. It is the bulwark or the framework which entitles a litigant to bring another party before the altar of adjudication. See ADESANYA VS. PRESIDENT OF NIGERIA (1981) 12 NSCC 146; ATTORNEY GENERAL KADUNA STATE VS. HASSAN (1985) 2 NWLR (Pt. 8) 483 at 496 and BAKARE VS. AJOSE ADEOGUN (2014) 6 NWLR (1403) 320, 350. The concept focuses not on the merit of the case but on the merit of the person seeking to approach the court. The essence of the concept is to protect the court from being used as a playground by professional litigants, busy bodies, meddlesome interlopers and cranks who have no real stake or interest in the subject matter of the litigation they seek to pursue. It is so fundamental that where a plaintiff lacks locus standi, the court cannot properly assume jurisdiction.
I agree with counsel for the appellant that ADESANYA V. THE PRESIDENT (SUPRA). is the locus classicus on locus standi in Nigeria.
The Supreme Court, per Bello, JSC held categorically at page 165 that –
“To entitle a person to invoke judicial power to determine the constitutionality of such an action, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he sustained or is in immediate danger of sustaining an injury to himself”.
However, we respectfully part company with him on his argument that the rigidity or demands of locus standi set out in Adesanya’s case has been relaxed in constitutional matters. In the realm of public law, (this includes constitutional law) the law on locus standi is still that an individual or citizen or a tax payer without more will generally not have standing as a plaintiff. This is because such litigations concern public rights and duties which belong to and are owed all members of the public including the appellant.
It is the duty of the Attorney – General to sue on such rights and duties. A private individual can only sue when he is given a fiat in that regard by the Attorney-General. It is only where the individual has suffered special damage or injury over and above the one suffered by the other members of the public generally, that he can sue personally. Interest common to all members of the public is not a litigable interest and cannot accord standing. See ADESANYA (SUPRA); BEWAJI VS. OBASANJO (2008) 9 NWLR (1093) 540, 576 and IWARA VS. ITEM (2009) 17 NWLR (1170) 337.
The above is founded on Section 6 (6) (b) of the Constitution of Nigeria 1999 (as amended) which provides that;
“The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto for the determination of ay question as to the civil rights and obligation of that person.”
In ANOZIE VS. AG LAGOS STATE and OTHERS (2010) 15 NWLR (Pt 1216) 207 at 234, this court emphasized:
“Basically, the concept of locus standi, applicable to civil proceedings in the Nigerian courts, is traceable to the provision of the Constitution of the Federal Republic of Nigeria 1999, most especially section 6(6) (b) thereof. By the said section 6(6)(b) of the 1999 Constitution, the judicial powers of the courts shall extend to all matters between persons or between government or authority, and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question regarding the civil rights and obligations of the complainant. The complainant must show that the act complained of affects rights and obligations peculiar or personal thereto. He must also show that his private rights have been infringed or injured or there is a threat of such infringement or injury…”
In the case of THOMAS VS. OLUFOSOYE (SUPRA). 272 and 276, the Supreme Court clarified that locus standi cannot stand independently from the provision of the above and that the requirement of adversity is graphically expressed in the subsection by the requirement of “any question as to the civil rights and obligation of that person” to be raised in matters for determination by the courts.
It has been held that the decision in Adesanya’s case remains our law until it is reversed by a contrary decision of a constitutional panel of seven justices. This has not yet been done.
See THOMAS VS. OLUFOSOYE (SUPRA) 287. In the case of BUSARI VS. OSENI (1992) 4 NWLR (237) 557, 586, this court held that the decision in FAWAHINMI VS. AKILU (SUPRA) relied upon by appellant’s counsel to ground his theory of a liberal or relaxed approach to standing in constitutional matters, did not extend the frontiers of locus standi beyond Adesanya’s case. This, in our view, is because Fawehinmi’s case laid down the rule for locus standi in criminal cases only.
In BEWAJI VS. OBASANJO (SUPRA). at PP 576, the supreme court held:
“Under public law, an ordinary individual or a citizen or a tax payer without more will generally not have “locus standi” as a plaintiff. This is because such litigations concern public rights and duties which belong to and are owed all members of the public including the plaintiff. It is only where the individual has suffered damage over and above the one suffered by the other members of the public generally that he can sue personally. In short, a general interest common to all members of the public is not a litigable interest and cannot accord standing to a particular member.”
Again, in the case of CENTRE FOR OIL POLLUTION WATCH VS. NNPC (2013) 15 NWLR (1378) 556,575- 576, this court held that the Nigerian concept of locus standi has not evolved to the level of English law on the concept which is liberal.
We were referred to the case of FAWEHINMI VS. PRESIDENT OF FEDERAL REPUBLIC OF NIGERIA (2007) 14 NWLR (1054) 275 where it was held by the Court of Appeal that any citizen should be in a position to sue in respect of public derelict and that the requirement of locus standi becomes unnecessary in constitutional issues. This was a decision of the Court of Appeal but the decision of the Supreme Court in ADESANYA VS. PRESIDENT (SUPRA) still stands as the position of the law on locus standi in the realm of public law it being a decision of the highest court of the land by the doctrine of judicial precedent. The decision in Adesanya’s case is yet to be overruled by a constitutional panel of the Supreme Court nor has Section 6 (6) (b) of the Constitution been amended to expand the frontiers of locus standi in matters of public rights. See recent cases such as BEWAJI VS. OBASANJO (SUPRA); SHIBKAU vs. ATTORNEY-GENERAL OF ZAMFARA STATE (2010) 10 NWLR (1202) 312, 340 AND ASUU VS. BPE (2013) 14 NWLR (1374) 398,415 and 421.
In considering the standing of a plaintiff the court is to study carefully the statement of claim (in this case the originating summons and the affidavit in support) to see if sufficient interest is disclosed on the part of the plaintiff. In the instant case, from the perusal of the appellant’s affidavit, in support of the originating summons and further and better affidavit, the standing of the appellant is founded on;
(i) That he is a Nigerian, a tax payer and a member of the 2nd respondent;
(ii) That he is interested in contesting for the office of the President.
(iii) That if the 1st respondent contests, the chances of the North and East to contest will be emasculated.
The first leg of his standing is without substance as his general interest does not place him on a pedestal above that of any other Nigerian and/or member of PDP or tax payer. The second leg is equally a non-starter as a mere declaration of intent is not sufficient to ground standing. He must go ahead to show concrete interest by taking out the relevant form but as at that time it was not shown that notice of poll had been given by 3rd respondent for the relevant form to be taken out by him. His statement of interest was a mere expression of a wish which cannot ground standing. As regards the third leg, there is nothing in the Constitution of Nigeria that bars a person from any part of this country at any given time from contesting for the office. The same has not been demonstrated to be a provision of the Constitution and guidelines of the PDP. Furthermore, his action is not a representative action to protect the interest of the North or East.
The law is that a plaintiff who seeks a declaratory relief relating to the Constitution as in this case, must establish a constitutional right or interest in relation to which the declaration can be made, as courts will not decide hypothetical questions.
The right or interest must be substantial, tangible and not vague, intangible or caricature. The appellant has failed in this regard.
See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 427, 602.
I therefore agree with the lower court that the appellant had no locus standi to sue.
With respect as to whether or not the appellant’s action discloses any cause of action, it has been stated that a cause of action is made up of the factual situation which gives the right to judicial relief. See EGBE VS. ADEFARASIN (1987) 1 NWLR (471).
Generally, a cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to a right to sue. The term cause of action can also be defined as the factual situation which a plaintiff relies upon to support his claim, recognized by law as giving rise to a substantive right capable of being claimed or enforced against a defendant – ADESOKAN VS. ADEGOROLU (1997) 3 NWLR (Pt 493) 261 at PG 279 PARA D; EMATOR vs. NIGERIAN ARMY (1999) 12 NWLR (Pt 631) 362 at PG 369-370; ASOBORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (Pt 971) 599 at PG 617 PARA A-G; NICON INS CORP VS. OLOWOFOYEKU(2006) 5 NWLR (Pt.973) 244 at PG 255 PARA F-G.
In the case of THE HON. EGBUE VS. HON. E.O. ARAKA (1988) 7 SCNJ (Pt 1) 190 at 201, Uwais JSC expatiated thus –
“…cause of action means the fact of combination of acts which give rise to a right to sue. This right to sue consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent to the wrongful act.”
See ANIBABA VS. BADEJO (2013) 5 NWLR (Pt. 346) 42 at 63-64, 66-67; UWAZUONYE VS. GOV, IMO STATE (2013) 8 NWLR (Pt 1355) 28 at 76; DADA VS. SIKUADE (2014) NWLR (Pt 1435) 72 at 82.
A cause of action therefore differs from a right of action. A cause of action constitutes a set of facts or fact which gives a person a right to judicial relief where he is wronged. In other words, a cause of action is the operative fact or facts (factual situation) which gives rise to a right of action which itself is a remedial right.
For a cause of action to arise (i) there must be a juristic person who can make the claim and a juristic person against whom the court can make an enforceable order. (ii) There must be a factual situation which will enable the court to inquire. It is only when facts establishing a civil right or obligation and facts establishing infraction or trespass on that right and obligation exist side by side, that a cause of action is said to accrue. See CONSOLIDATED RESOURCES LTD VS. ABOFAR VENTURES NIG LTD (2007) 6 NWLR (Pt 1030) 221, 294 AND OSIGWE vs. PSPLS MANAGEMENT CONSORTIUM LTD (2009) 171 LRCN 94, 111.
After reviewing the evidence and the law, the trial court held that the appellant’s case did not disclose any cause of action. We cannot fault this conclusion. There was nothing to show that the 3rd respondent had given notice of the poll and that the 2nd respondent had commenced the process of nomination pursuant to Section 87 (1) of the Electoral Act. The appellant was not shown to have taken out any form to show or declare his intention to contest. Even now there is nothing put before us to show that the appellant took out any form to show his intention.
As Shakespeare said, “…there is no art to find the man’s construction on the face.” Exhibit VRA1 the photocopy of the newspaper could not be interpreted to mean that the 1st respondent had even declared his intention to contest, more so when the statement was not made by 1st respondent himself, Newspaper reports in any case are not generally admissible as evidence of facts contained in them. See LAWAL VS. GOVERNOR, KWARA STATE (2006) ALL FWLR (321) 1299, 1308. It must be remembered that what is under consideration is the factual basis of the appellant’s case at the trial court.
Appellant’s attempt in his brief to bring in facts that occurred after the trial is of no moment as he ought to have waited for his cause of action to crystallize before filing the case at the lower court. The reason is that a cause of action is not retrospective.
See UBA VS. ETIABA (2010) 10 NWLR (Pt 1202) 343, 392.
We therefore agree with the trial court that the case of the appellant was speculative and imaginary. The appellant failed to show his civil rights and an infraction or threatened infraction of the same. We also agree with 3rd respondent’s counsel that none of the reliefs confers any benefit on the appellant.
We enter an affirmative answer to issue 1 and resolve it against the appellant. Consequently, the case of the appellant, Suit No. FCT/HC/CV/2449/2012, stands struck out, as ordered by the trial court.
We shall however, still decide the merit of this appeal, since we are a penultimate Court.
Learned counsel for the appellant in his Issues 3, 4 and 5, which are encompassed in this Issue No. 2, submitted that the 1st respondent and late President Umaru Yar’adua had a joint and single ticket in 2007 when they were elected Vice-President and President respectively, under one single ballot. He referred to section 142(1) of the 1999 Constitution and argued that since the 1st respondent took over and completed the tenure of late President Yar’adua after taking the Oath as President, in accordance with section 146(1) of the 1999 Constitution, and by the operation of section 143 of the 1999 Constitution, he cannot now separate or extricate himself from the Presidency of Umaru Yar’adua. Counsel submitted that the 1st respondent, was sworn in a second time as the 6th president of the Federal Republic of Nigeria on the 29th of May, 2011, after he had been declared the winner of the Presidential Election held on the 16/4/2011, and concluded that the 1st respondent had therefore taken the Oath of allegiance and the Oath of Office contained in the Seventh Schedule to the 1999 Constitution, twice, i.e. on the 6th of May, 2010 after the demise of President Umar Yar’adua and on the 29th of May, 2011. He then argued, by invoking section 135(1) and (2) of the 1999 Constitution, that no President can take the Oath of Office more than twice. Learned counsel was emphatic that the 1st respondent was deemed to have been “first elected” by virtue of section 135(1)(b) of the 1999 Constitution, when he became President after the demise of Umaru Yar’adua and the 29th of May, 2011, was his “second as elected” President. He then referred to sections 130, 132, 134, 136, 137, 141, 142, 143, 144 and 146 of the 1999 Constitution and urged us to construe them holistically as a whole, not in isolation, as was done by the trial judge. He referred to the cases of OBANYUWANA VS. GOVERNOR (1982) 12 S.C. 147 at 211 and ATTORNEY-GENERAL OF THE FEDERATION VS. ATIKU ABUBAKAR (2007) 10 NWLR (Pt. 1041) 1.
Learned counsel argued that the interpretation of section 135(1) of the 1999 Constitution would be the same as section 180(1) and (2) of the 1999 Constitution interpreted in BRIG-GEN MOHAMMED MARWA VS. ADMIRAL MURTALA NYAKO (2012) 6 NWLR (Pt.1296) 199 at 308 – 309, which shows that no Governor can take the Oath of Allegiance and the Oath of Office more than twice. He opined that should the 1st respondent contest the presidential election in 2015 and he wins and takes the Oath of Allegiance and the Oath of office on 29/5/2015, he would then have taken the Oaths thrice and this would be contrary to section 135(1)(b) of the 1999 Constitution and it would also mean that he would be in office as the President of the Federal Republic of Nigeria for twelve years, instead of a maximum of eight years. On the other hand, he argued, since the 1st respondent had already spent a year as President when he completed the term of President Umaru Yar’adua, and since he had also spent four years after his election in 2011, then he would spend nine years, if he were to contest in 2015 and win to serve another term of four years. This would also be unconstitutional, he argued.
Learned counsel submitted that the trial judge was wrong when he held that the provision of section 137(1)(b) of the 1999 Constitution does not apply to the 1st respondent.
Learned counsel argued that the declaration of the trial judge that the tenure of office of the 1st respondent as President did not begin on 6th of May, 2010 but on the 29th of May, 2011 was wrong, as he was never called upon to decide that question and a court is not entitled to grant to a party, what he did not seek – ENAHORO VS. IBWA (1971) 1 NCLR 180; JOS STEEL ROLLING CO. LTD VS. BERNESTIELE (1995) 8 NWLR (Pt.412) 201; NWANYA VS. NWANYA (1987) 3 NWLR (Pt. 62) 697; AWOYEGBEU Vs. OGBEIDE (1988) 1 NWLR (Pt. 73) 695; UMENWELUAKU VS. EZEANA (1972) 5 S.C. 343 and WESTERN STEEL WORKS LTD. VS. IRON STEEL WORKERS UNION (1986) 3 NWLR (Pt. 30) 617 at 618.
Learned counsel then cited authorities on the need to give words used in a statute, their ordinary, natural and grammatical meaning – AG. LAGOS VS. DOSUNMU (1989) 3 NWLR (Pt. 111) 552 at 580; NWOSU VS. IMO (1990) 2 NWLR (Pt. 135) 688 at 715; CHIME VS. UDE (1996) 7 NWLR (Pt.461) 379. He then urged us to resolve the issues he identified, in favour of the appellant.
In his reaction to the position of the appellant, learned counsel for the 1st respondent contended that the trial court was right in law and on the facts, when it held that the 1st respondent is eligible to seek election for another term of 4 years in 2015, if he so wishes, having regard to section 135(2)(b) and section 318 of the 1999 Constitution. Learned counsel extracted the relevant portions of the judgment, to be seen at pages 146 – 148 of the record and made references to section 135(1) and (2), 137(1)(b), 140(1) and (2), 142(1) and (2), 146(1) (3)(b)(c) and 318 of the Constitution. He then submitted that in interpreting the Constitution, all the provisions of the Constitution should be read together, effect should be given to every word used and the words given their plain and evident meaning. He referred to A.G. BENDEL VS. A.G. FEDERATION (1981) 10 S.C. 1; ISOLA VS. AJIBOYE (1994) 7 – 8 S.C. 1 at 35 (1994) 6 NWLR 500 and NAFIU RABIU VS. KANO STATE (1980) 8 – 11 S.C. 130 at 149.
Learned counsel argued that sections 137(1) and 318 of the 1999 Constitution in their clear and unambiguous meaning show that the limitation placed on a President is as regards election to that office and does not extend to appointment into it by operation of law as in section 146 of the 1999 Constitution. So when President Umaru Yar’adua died and the 1st respondent stepped in as President, he argued, he was not elected and that tenure cannot be regarded as an election tenure. He emphasised the point by stating that election to such office means election to the office of the President and not the office of the Vice-President and so the 1st respondent, could not have been said to have been elected as President, when he was elected as Vice-President. He referred to A.G. FEDERATION & ORS VS. ALH ATIKU ABUBAKAR & ORS (2007) ALL FWLR (Pt. 375) 405; PDP VS. INEC (1999) 11 NWLR (Pt. 626) 200 at 265 and OJUKWU VS. OBASANJO (2004) 7 S.C. (Pt. 1) 117 at 128.
On the case of BUBA MARWA & ANOR VS. NYAKO & ORS (SUPRA) relied upon by the appellant, learned counsel for the 1st respondent submitted that although the sections of the Constitution which the Supreme Court interpreted in MARWA’S case, sections 180(1) (2) and (3) and 182(1)(b) of the 1999 Constitution are in pari materia with sections 135(1), (2) and (3) and 137(1)(b) of the 1999 Constitution, there are differences and therefore, MARWA’S case cannot be relied upon to determine this appeal. He enumerated about eleven distinguishing features.
In conclusion, he urged us to hold that the 1st respondent had only been elected once as President of the Federal Republic of Nigeria and was not elected into that office in 2007 or in 2010. He urged us to dismiss the appeal.
The briefs of the 2nd and 3rd respondents, settled by Mr. V. Kwon and Chief Awomolo SAN have substantially supported the position of the 1st respondent in urging us to hold that the 1st respondent did not go through the process of an election as President, on two previous occasions, according to the 1999 Constitution, as his succession to President Yar’adua in May 2010 was by operation of law, only. This, they say, is even if the action was competent. Their submissions are both, that the appellant has no locus standi to institute the action and that there is no cause of action, which has left the case bare.
In urging us to dismiss the appeal, Chief Awomolo SAN has urged us to pronounce on the provisions of sections 135 and 137 of the Constitution.
For ease of reference, the relevant provisions of the 1999 Constitution as amended are set out hereunder –
S.135 (1) Subject to the provisions of this Constitution, a person shall hold the office of President until –
(a) when his successor in office takes the oath of that office;
(b) he dies whilst holding such office;
(c) the date when his resignation from office takes effect; or
(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution.
(2) Subject to the provisions of subsection (1) of this section, the president shall vacate his office at the expiration of a period of four years commencing from the date, when –
(a) in the case of a person first elected as President under this constitution, he took the Oath of Allegiance and the oath of office: and
(b) in any other case, the person last elected to that office under this Constitution took the Oath of allegiance and oath of office or would, but for his death, have taken such oaths.
S.137 (1) A person shall not be qualified for election to the office of President if –
(b) he has been elected to such office at any two previous elections.
S.142 (1) In any election to which the foregoing provisions of this part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate, as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid.
(2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice- President as if references to President were references to Vice-President.
S.146 (1) The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 or 144 of this Constitution.
S.318 …”office” when used with reference to the validity of an election means any office the appointment to which is by election under this Constitution.
The Constitution is the grundnorm and it is sacrosanct, for it is from it that other laws are made, rights created and powers conferred. It is the source from which other tributaries emanate and the 1999 Constitution of the Federal Republic of Nigeria is the foundation upon which the democratic system of Government we practice, is anchored. It governs the relationship between citizens, between citizens and Government and also defines our relationship with other Nations in this global village. It is therefore a document that must be appreciated, respected and obeyed by all of us.
The words in the Constitution, are what convey the intention of the framers of the Constitution. Therefore disputes or misunderstandings are bound to occur in the course of working with the Constitution. The lot is on the courts, to interpret the Constitution. In so doing, a court of law is duty bound to consider in entirety, the relevant sections of the Constitution, in order to arrive at the correct result, i.e. to decipher the intention of the framers – PDP VS. INEC & ORS (1999) 11 NWLR (Pt.626) 200; CHIME VS. UDE (1996) 7 NWLR (Pt. 461) 379 and A.T. LTD VS. A.D.H LTD (2007) 15 NWLR (Pt.1056) 118 which held that –
It is settled law that when a court is faced with the interpretation of a Constitutional provision, the entire provisions must be read together as a whole so as to determine the object of that provision…”
In interpreting the Constitution when the relevant provisions are read together, the words used, if clear and unambiguous, must be given their plain and ordinary meaning – FRED EGBE VS. ALHAJI (SUPRA) and OJUKWU vs. OBASANJO (2004) 12 NWLR (Pt. 886) 169 at 210. As far back as 1981, Obaseki JSC formulated cannons of interpretation, in the case of A.G. BENDEL STATE VS. A.G. FEDERATION 12 NSCC 314 at 371 – 373. They are –
(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 con.
(3) A Constitutional power cannot be used by way of condition to attain unconstitutional 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 a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
(9) Declaration by the national Assembly of its essential legislative functions 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 his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation.
(11) The principles upon which the Constitution was 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.
In the instant appeal, it is not controverted, that the first Oath the 1st respondent took in 2007, as a result of the joint election he had with Umaru Yar’adua, was an Oath as the elected Vice-President of the Federal Republic of Nigeria, not as President as it was Umaru Yar’adua that took the Oath as the elected President, in 2007.
As it is with all mortals, when elected President Yar’adua was called to the great beyond, on the 5th of May, 2010, the 1st respondent, who was then the Vice-President, took the Oath of Office as President on the 6th of May, 2010, by virtue of section 146(1) of the 1999 Constitution, to complete the unexpired tenure of President Yar’adua. This succession of the 1st respondent to the position of President, is what the appellant has invited us to deem, that he was elected, and that the Oaths he took therein, were his 1st Oaths of Office and Allegiance as elected President.
Section 137(1)(b) of the 1999 Constitution disqualifies a person from standing for an election to the office of the President if-
“he has been elected to such office at any two previous elections.”
So the operative word, is election. The disqualification is to stand for an election again, if one had been elected at two previous elections.
‘Election’ has been defined by the Oxford Advanced Learner’s Dictionary, 7th Edition, as –
“the process of choosing a person or a group of people for a position, especially a political position, by voting.”
So, the word ‘election’, used in section 137(1)(b) of the 1999 Constitution, when given its ordinary grammatical meaning, connotes a process where voting is employed, to choose a person for a political office. The process of primaries, nomination, voting, collating and announcement of results must of necessity, be involved. These did not take place, when the 1st respondent stepped into the shoes of President Yar’adua on the 6th of May, 2010. To say that these things were deemed done, is to import into the section, words that were not used and this is not permitted.
Again, the succession of a Vice-President to the office of a President who died, in accordance with section 146(1) of the 1999 Constitution, cannot be “deemed an election”, especially for the purpose of taking away a right that has been vested. As stated earlier, an election under the 1999 Constitution involves primaries, nominations, voting and declaration of results. That is the mode prescribed in electing a President, and once it is so prescribed, it must be followed, and no other method can be employed. All these processes can be challenged in a court of law and if successful, the election would be annulled. But if a Vice-President succeeds a President who died, that cannot be challenged because it is a Constitutional provision, and the succession cannot be annulled. It is a mode of assumption to the office of the demised President, an ‘appointment’ by the Constitution, as it were, as no letter of appointment is necessary from anybody. The Vice-President automatically becomes the President, by virtue of his being the Vice-President. An example can be found in section 130(1) and (2) of the 1999 Constitution.
The President of the Federal Republic of Nigeria, is the Commander-in-Chief of the Armed Forces of the Federation. This is a Constitutional ‘appointment’, without the necessity of any letter, as he automatically becomes the Commander-in-Chief, by virtue of his being the President.
Further, if we were to hold that the 1st respondent was ‘elected’ in May 2010, and had taken the Oath of office as President as an elected President for the 1st time in May 2010, then it means that by section 135(1) (2)(a) of the 1999 Constitution, he would then be eligible to serve for four years, since a person first elected as President, has a tenure of four years. This cannot be, since by section 135(2)(b) of the 1999 Constitution, he is only entitled to complete the un-expired term of President Yar’adua. So, this brings to fore, the absurdity and ambiguity, in the interpretation urged upon us, by the appellant.
That would amount to consigning or relegating to the background, the system of voting when it ought to be in the front burner since it is the foundation of the democratic system of Government where the majority would have their way in forming the Government and the minority will have their say even if the voices are drowned. Clearly therefore, it was not an election that produced the 1st respondent as the President in May 2010, nor can it be deemed to have been an election. As a corollary, the Oaths he took then, could not have been the Oaths of an elected President.
The appellant has invited us to apply the case of MARWA VS. NYAKO (SUPRA) to the instant appeal, arguing that the Supreme Court held therein, that once a Governor takes the Oath of Office and Oath of Allegiance twice, he would stand disqualified to stand for that office again. His argument is premised on his interpretation, that the 1st respondent had taken Oath as an elected President or deemed to have done so on the 6th of May, 2010 and on the 29th of May, 2011, section 180 of the 1999 Constitution, being in pari materia with section 135 of the 1999 Constitution.
I have already held above, that the process which produced the 1st respondent as the President in May 2010, was not an election process, but an operation of Constitutional provision. Not a single vote was cast for him, nor was he nominated by any Political Party. This is diametrically different from what transpired in 2011, when he was nominated by his party, stood for election, obtained majority of lawful votes and was declared elected as President. That was his first election as President and the Oaths he took, were the results of his first election as President. The situation in the instant appeal, is therefore a far cry from what transpired in MARWA VS. NYAKO (SUPRA). In that case, the Governors of Adamawa, Bayelsa, Cross River, Kogi and Sokoto States, sought for an interpretation of when their tenure would start to run. They were first elected as Governors of their respective States and they subscribed to the Oaths of Allegiance and Office. Their elections were successfully challenged in Court and so they were annulled. They stood for a re-run election and they all won in their respective States and they again took the required Oaths. The Supreme Court, per Onnoghen JSC, held at pages 64-65, that-
“…they were certainly governors defacto during the period they operated ostensibly in accordance with the provisions of the Constitution and Electoral Act and as such the period they so operated has to be taken into consideration in determining the terminal date of their tenure following, what I may call, their second missionary journey vide a re-run election particularly as the Constitution unequivocally grants a tenure of four years to a person elected governor of a State calculated from the date he took the Oaths of Allegiance and of Office which was the 29th day of May, 2007… To calculate the tenure of office of the governor from the date of their second Oaths of Allegiance and of Office while ignoring the period from 29th May, 2007, when they took the first oaths is to extend the four years tenure constitutionally granted the governors to occupy and act in that office which would be unconstitutional…”
The second Oaths were declared superfluous.
It is clear to me, that the facts in MARWA VS. NYAKO (SUPRA), are different from these in the instant appeal. The five governors in MARWA’S case were, after a process of voting, elected as governors of their respective States and took the Oaths of Allegiance and office on 29th May, 2007. When the elections were nullified, they all stood for the re-run elections and they were again declared elected after voting. They took the Oaths of Allegiance and Office again. The Supreme Court held that their tenure of office commenced on the 29th of May, 2007 when they first took the Oaths. So that case, was essentially about determining when their four years tenure commenced. It was not about qualification or disqualification to stand election. Again, the same persons who stood for election as Governors and won and were sworn in, were the same persons who stood for the re-run elections and won and were sworn in.
In the instant appeal, the 1st respondent was not elected President in 2007 and did not take the oaths of Allegiance and Office as President in 2007. He did so as Vice-President. Again in May 2010, he was not elected President and the Oaths he took in order to perform the functions of President, were not as a result of an election, and so they could not count as first Oaths of an elected President, as happened in MARWA’S case. The 1st respondent factually, was first elected President in 2011 and took the Oaths of Allegiance and Office, on 29th May, 2011. That is his first elected tenure of four years as a President. The case of MARWA is therefore distinguishable from the instant appeal and it cannot be relied upon as an authority, to say that the 1st respondent had been elected twice or deemed to have been elected twice on 6th May, 2010 and on 29th May, 2011 and had taken the required oaths twice. I hold, that the 1st respondent was elected the President of the Federal Republic of Nigeria for the first time, in 2011 and the first Oaths of Allegiance and of Office he took as an elected President, were on the 29th of May, 2011. By section 137(1)(b) of the 1999 Constitution, and having regard to the claims of the appellant, I hold that the 1st respondent had not been elected as President at two previous elections and his two terms shall not end on May 29th, 2015.
The appellant has also argued that the trial court had misapprehended the case put forward before it when it found that the gist of the appellant’s case is “whether as a result of the death of president Yar’adua and the swearing of the 1st Respondent who was till the death of late president Yar’adua, Vice-President, as president for the unexpired period of 4 years tenure of the late President Yar’adua would, mean a four year tenure as President by the 1st Respondent.”
Learned counsel for the appellant argued that this was a departure from the case put forward by the appellant in the Originating Summons, and that the trial Judge decided what he was not invited to decide upon. Further, that the declaration by the trial court that the tenure of office of the 1st respondent as President did not begin on 6th May, 2010 and his tenure commenced on 29th May, 2011, is patently and manifestly wrong since the court was never called upon to decide that question. He argued that this amounts to granting to a party, what he did not seek and is wrong.
In my view, these complaints have been raised out of con and if the judgment had been considered and read as a whole, the meaning and purport would have been clearer to the appellant. This is because the declaration by the trial judge at page 148 of the record, that the tenure of office as President by the 1st respondent did not begin on 6th May, 2010 and that his tenure commenced on 29th May, 2011, is consequent upon the findings of the trial judge at pages 146 – 147 of the record, findings that are correct and which I have earlier endorsed. He said –
“… The 1st Defendant (1st respondent) never contested the said election (2007 election) as a Presidential candidate of the 2nd Defendant at that election but a Vice Presidential Candidate.
…The event that brought in the 1st Defendant to occupy the seat of the President of Nigeria was consequent on the sudden death of the President Umaru Yar’adua. The distinguishing factor here is that after the death of Yar’adua there was no election or by-election to robe in the 1st Defendant that he has contested for that office vide an election, He was merely asked to assume the office and he was sworn in.”
These findings are sequel to the evidence placed before the trial court in the various affidavits of the parties, as a result of the first question for determination raised by the appellant in the Originating Summons. The first question reads –
“Whether section 135(2) of the Constitution which specifies a period of four years in office for the president is only available or applicable to a person elected on the basis of an actual election or includes one in which a person assumes position of president by operation of law as in the case of Goodluck Jonathan i.e. the 1st Defendant?”
The findings of the trial judge were therefore necessary before the first question could be determined. The findings are directly connected to the case of the appellant and the reliefs he sought. He cannot be faulted in anyway, thereby, and the authorities cited by counsel for the appellant on granting to a party what he did not seek are therefore inapplicable here.
When the trial judge held that the provision of section 137(1)(b) of the Constitution does not apply to the case of the 1st respondent, learned counsel for the 2nd respondent, contrary to the position of the appellant, submitted that the holding is correct. I agree with him. This is because to be disqualified to stand for election to the office of the President, one must have, by section 137(1)(b) of the 1999 Constitution, stood for election as President on two previous occasions. The 1st respondent did not, nor can he be deemed to have done so. The holding of the trial judge is directly in issue and had to be done, in order to decide on the merit of the case. He was well within his bounds and learned counsel for the 2nd respondent hit the nail on the head when he submitted that, “it is therefore most uncharitable on the part of the appellant to turn round and say that the lower court erred in finding that the issue at stake in the suit subject to this appeal was whether or not the 1st respondent’s occupation of the office of President for the unexpired term of late President Yar’adua meant a four year tenure of the 1st respondent as President.” It is crystal clear that the purpose of filing the Originating Summons by the appellant, was to get the court to pronounce that the 1st respondent having been sworn in as President on 6th May, 2010, and also on 29th May, 2011, he is disqualified from standing for election in 2015. The findings of the trial judge were geared towards determining the Originating Summons and when the Constitutional provisions were interpreted, the appellant did not achieve his aim. The process embarked upon by the trial judge in determining the originating Summons is correct. His findings are correctly based on the facts adduced in the affidavits. The right decision was arrived at.
This brings me to the complaint of the appellant that the trial court was wrong when it held that the 1st respondent is qualified along with other eligible Nigerians to run for the office of President in 2015 general elections.
The trial judge had already found that the 1st respondent is not disqualified from standing for election in 2015 general election, to the office of President. He was right because to be disqualified, you have to have been elected at two previous elections in accordance with the provisions of the Constitution.
The beacon in the light house which has guided us, which we are bound to follow and which has resolved a similar dispute, is OJUKWU VS. OBASANJO (SUPRA) The Supreme Court held that although General Obasanjo was appointed to the office of Head of State after the death of General Murtala in 1976, he was not appointed to that office “by the popular votes of the people of this country” as the 1999 Constitution stipulates. The stint in office, could therefore not count as an “election to the office of President”, and so it could not be a disqualification factor, when he presented himself in 2003 general elections to contest for the office of the President. The election he stood for in 1999, in accordance with the 1999 Constitution, and which he won by majority of lawful votes and was sworn in as the President, was taken to be his first election to the office of President, for the purpose of disqualification, not his 1976 occupation of the office.
He was therefore qualified and eligible to stand for another election in 2003 as a President.
So when the trial judge in this instant appeal said that the 1st respondent could seek the sponsorship of his political party to contest the 2015 Presidential election, showing that he is qualified as far as section 137(1)(b) of the Constitution is concerned, he was merely stating the provision of the 1999 Constitution and an obvious fact for that matter. For if you are not disqualified, then logically, it means you are qualified in that vein, but other disqualifying factors may come in, such as voluntary acquisition of citizenship of another country other than Nigeria. But as far as previous election as a President is the issue, and it is, the 1st respondent is not disqualified and consequently, he is qualified to seek to stand for election in 2015.
The appellant has also expressed displeasure in the conduct of the 2nd respondent and its principal organs, when it adopted the 1st respondent as its “consensus candidate” for the 2015 Presidential election, whilst this appeal is pending. He urged us to hold that the action is null and void and of no effect. He placed reliance on PETER OBI VS. INEC (2007) 9 MJSC 1 and AMAECHI VS. INEC (2008) 5 NWLR (Pt.1080) 227.
We take judicial Notice of the fact that this is no longer the position, since the 1st Respondent emerged the Presidential candidate of the 2nd respondent, through Primaries and not by consensus. It would therefore be futile and an academic exercise, to make pronouncement on “consensus candidate.” Issue No. 2 is thus answered against the appellant and in favour of the respondents.
This appeal therefore lacks merit and it fails. It is dismissed.
The judgment of the trial court in Suit No. FCT/HC/CV/2449/2012, delivered on the 1st of March, 2013, is hereby confirmed.
N50,000 cost, each to the 1st and 2nd respondents, against the appellant.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I agree.
TANI YUSUF HASSAN, J.C.A.: I agree.
JOSEPH E. EKANEM, J.C.A.: I agree.
MOHAMMED MUSTAPHA, J.C.A.: I agree.
Chief O. O Obono-Obla, with Mrs. Obono-OblaFor Appellant
K. M. Nomeh, with P. A. Obi (Miss), I. S. Okpor, hold brief for Mr. Okeaya-Inneh SAN for the 1st respondent.
V. Y. Kwon for the 2nd respondent.
Eyitayo Fatogun, with O. Olayeye-Kumuyi and B. R. Bello for the 3rd respondent.For Respondent