MR. OLAKUNLE OKUNOLA & ANOR v. JAMES ABIODUN FALEKE & ORS
(2018)LCN/12235(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 5th day of December, 2018
CA/L/624/2017
RATIO
COURT AND PROCEDURE: PRINCIPLE OF LOCUS STANDI
“The Apex Court gave a comprehensive exposition of the principle of locus standi in the case of BARBUS & CO. (NIG) LTD & ANOR v. OKAFOR-UDEJI (2018) LPELR-44501(SC)(Pp. 18-20, Paras. F-A) Per OKORO, J.S.C., thus: ‘The expression “Locus standi”, denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like “standing” or “title to sue”. A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are:- 1. The action must be justiciable. 2. There must be a dispute between the parties. There ought to be a liberal approach in applying the test. See Ojukwu v Ojukwu & Anor (2008) 12 SC (pt. 111) page 1, (2008) 18 NWLR (pt. 1119) 439, Attorney General Kaduna State v Hassan (1985) 2 NWLR (PT. 8) 483, Adesanya v President of the Federal Republic of Nigeria & Anor (1981) 550 page 112, (1981) LPELR – 147 (SC), Thomas & Ors v Olufosoye (1986) 1 NWLR (pt 18) 669, Emezi v Osuagwu & Ors (2005) 12 NWLR (pt 939) 340’“PER JAMILU YAMMAMA TUKUR, J.C.A
INTERPRETATION: TO IMPORT WORDS AND MEANING INTO STATUTE
“It is settled law that the Court is enjoined not to import words and meanings into statutes where the intent is clear and would not lead to absurdity. See: Paulinus Ikedigwe Vs Federal Republic of Nigeria (2010) LPELR 4295 (CA); Olusola Adeyeye Vs Simeon Oduoye & Ors (2010) LPELR 3623 (CA); Bob Vs Akpan (2009) LPELR 8519 (CA).” PER JAMILU YAMMAMA TUKUR, J.C.A
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. MR. OLAKUNLE OKUNOLA
2. PEOPLES DEMOCRATIC PARTY Appellant(s)
AND
1. JAMES ABIODUN FALEKE
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Federal High Court Lagos Division in SUIT NO: FHC/L/CS/1680/2015 delivered by Honourable Justice AM Anka on 21st February, 2017, wherein the Court gave judgment in favour of the Respondents
The material facts leading to this appeal, are that the Appellants instituted an action vide an Originating Summons filed on 6th November, 2015 seeking the following:
1. A Declaration of this Honourable Court that the nomination of the 1st Defendant by the 2nd Defendant as its candidate for the National Assembly House of Representative Election of the 28th March, 2015, representing the Ikeja Federal Constituency 1 of Lagos State and the subsequent nomination of the 1st Defendant by the 2nd Defendant as its Deputy Governorship Candidate for the 21st November, 2015 gubernatorial election of Kogi State, during the 1st Defendant?s subsisting membership of the House of Representatives as a member representing the Ikeja Constituency amounted to multiple nomination hence, unconstitutional, null and void and of no effect whatsoever.
2. A Declaration that the nomination of the 1st Defendant by the 2nd Defendant as its candidate for the National Assembly House of Representative Election of the 28th March, 2015, for the Ikeja Federal Constituency 1 and its subsequent nomination by the 2nd Defendant as its Deputy ‘Gubernatorial’ Candidate from the Ekinrin-Ade ward of Ijumu Local Government Area of Kogi State is contrary to Section 37 of the Electoral Act 2010 as amended consequently unconstitutional, null and void and of no effect whatsoever.
3. A Declaration that the transfer of the 1st Defendant?s membership and voting data from the Ikeja Federal Constituency 1 of Lagos State to Ekinrin-Ade Ward of Ijumu Local Government Area of Kogi State by the 3rd Defendant automatically terminated the 1st Defendant’s membership of the Ikeja Federal Constituency of Lagos State, consequently extinguishing his continued representation of the Ikeja Federal Constituency 1 of Lagos State in the House of Representatives of the National Assembly under Section 68(1)(b) of the Constitution of the Federal Republic of Nigeria as amended, 2010.
4. A Declaration of this Honourable Court that the nomination of the 1st Defendant by the 2nd Defendant as the Governorship aspirant for the Governorship election of Kogi State for the 21st November, 2015 election is null and void and of no effect and in contravention of Section 37 of the Electoral Act 2010 as amended.
5. An Order of this Honourable Court compelling the Defendant to vacate his seat as member of the House of Representative of the National Assembly of the Federal Republic of Nigeria representing Ikeja Federal Constituency 1 forthwith from the date of such transfer of membership and data by the 3rd Defendant and further declaration that the 1st Defendant?s seat in the House of Representatives is accordingly vacant.
6. An Order of perpetual injunction restraining the 3rd Respondent from any further reversal or transfer of the 1st Defendant’s voting and membership data from Ekinrin-Ade Ward of Ijumu Local Government Area of Kogi State to the Ikeja Federal Constituency 1 of Lagos State.
7. And further order of the Honourable Court restraining the 1st Defendant, by himself, his agents, whomsoever, howsoever from parading himself as the member of the House of Representative representing the Ikeja Federal Constituency 1 in the House of Representatives.
8. And for such order or orders which this Honourable Court may deem fit to make in the circumstance.
Both parties filed requisite processes and the 1st and 2nd Respondents filed a Notice of Preliminary Objection dated 2nd March, 2016, seeking an order of the lower Court dismissing or striking out the suit for being an abuse of Court process and lack of jurisdiction of the Court to entertain same.
The lower Court took both the Preliminary Objection and the substantive suit together and judgment dated 21st February, 2017, held that the nomination of the 1st Respondent as Deputy Governor would not result in the vacation of an already contested and won seat, and that the Appellants lacked the locus standi to challenge the nomination of the 1st Respondent.
Dissatisfied with the above, the Appellants appealed to this Court vide a Notice of Appeal dated 11th March, 2017 and filed on 12th April, 2017.
The Appellants’ Brief of Argument settled by M.J. Onigbanjo SAN, is dated 7th August, 2017 and filed on 8th August, 2017, but deemed properly filed on 16th April, 2018.
The Appellants’ Reply Brief is dated 28th May, 2018 and filed on 30th May, 2018. Appellants? counsel formulated three issues for determination to wit:
1. Whether the Appellants have the vires to challenge the nomination of the 1st Respondent as a candidate put forward to stand for election by the 2nd Respondent even though Appellants are not members of the 2nd Respondent party and did not participate in the 2nd Respondent’s primaries wherein 1st Respondent was nominated? (Grounds 1,3 and 4)
2. Whether in the circumstances of this matter 1st Respondent who knowingly allowed himself to be nominated in more than one constituency ought not to have been disqualified from continuing to represent the Ikeja Constituency at the National Assembly by virtue of the provisions of Section 37 of the Electoral Act (as amended) and Section 68(1) of the Constitution (Grounds 2 and 5)
3. Whether 1st Respondent can transfer his voting data outside of the constituency which he is elected to represent at the National Assembly and still continue to represent the said constituency? (Grounds 6 and 7)
On the other hand, the 1st and 2nd Respondents’ Brief of Argument settled by Gboyega Oyewole SAN, is dated 19th April 2018, and filed on 23rd April, 2018.
1st and 2nd Respondents’ counsel distilled three issues for determination to wit:
1. Whether having regard to the fact that the 1st Appellant is not a member and/or candidate of the 2nd Respondent and the provision of Section 87(10) of the Electoral Act, the Appellants have locus standi to challenge the nomination of the 1st Respondent by the 2nd Respondent as its Deputy Governorship candidate for the Kogi State Election.
2. Whether the nomination of the 1st Defendant by the 2nd Defendant as its candidate for the March 28th 2015 National Assembly election, his return as winner of the said election as representing Ikeja Federal Constituency and his subsequent nomination as the Deputy candidate of Kogi State from Ekinrin-Ade in Ijumu Local Government Area of Kogi state amounts to double nomination.
3. Whether the transfer of the 1st Defendant’s membership and voting data by the 3rd Defendant from the Ikeja Federal Constituency 1 of Lagos State to Ekinrin-Ade Ward of Ijumu Local Government Area of Kogi State did not disqualify him from continued membership of the Ikeja Federal Constituency and consequent representation of the Ikeja Constituency 1 in the House of Representatives.
A comparison of the issues raised by counsel of both parties, reveals that they are substantially the same. I therefore adopt the Appellants? issues for the purpose of convenience in determining this appeal.
ISSUE ONE:
WHETHER THE APPELLANTS HAVE THE VIRES TO CHALLENGE THE NOMINATION OF THE 1ST RESPONDENT AS A CANDIDATE PUT FORWARD TO STAND FOR ELECTION BY THE 2ND RESPONDENT EVEN THOUGH APPELLANTS ARE NOT MEMBERS OF THE 2ND RESPONDENT PARTY AND DID NOT PARTICIPATE IN THE 2ND RESPONDENT’S PRIMARIES WHEREIN 1ST RESPONDENT WAS NOMINATED? (GROUNDS 1,3 AND 4)
Learned senior counsel for the Appellants argued that the extant position of the law with regards to the nomination of candidates by political parties is to the effect that nomination of parties is no longer a matter within the exclusive preserve of the party; that a party must conduct its primaries in accordance with its constitution, and the Electoral Act; and that any candidate aggrieved with the primaries on the grounds that the provisions of the aforementioned instruments have been breached, can approach the Court for redress under Section 87(10) of the Electoral Act 2010 (as amended), interpreted in conjunction with Section 138(1) of the Electoral Act, which is what the 1st Appellant sought to do at the lower Court.
He relied on the case ofWada v. Bello (2016) 17 NWLR Pt. 1542 P.374 at 460 paras A-B.
Learned senior counsel also argued that the new position was affirmed by the Election Tribunal and the Court of Appeal sitting as Elections Petition Appeal Tribunal, which held that one doesn’t need to be a candidate at the primaries of a political party before one can question the primaries that produced a candidate who was returned elected.
Senior counsel submitted that by virtue of the doctrine of estoppel per rem judicata, the decision of the Elections Petition Appeal Tribunal having decided the issue of Appellant’s locus standi to challenge the nomination of the 1st Respondent, said issue ought not to have been allowed at the lower Court.
He relied on Section 246(2) (3) of the Constitution of the Federal Republic of Nigeria (as amended); and Ogbolosingha v. B.S.I.E.C 2015 6 NWLR Pt.1455, 311.
On the other hand, learned senior counsel for the 1st and 2nd Respondents argued that the lower Court was right to hold that the Appellants lacked the locus standi to file the suit based on the settled position of the law that nomination of candidates is purely a domestic affair of the party which cannot be interfered with by any external person/party.
Learned senior counsel for the 1st and 2nd Respondents also argued that the only statutory basis for the challenge of a political party’s prerogative to nominate its candidate, which is ensconced in Section 87(9), is vested solely in a member of the political party who participated in the party’s primaries.
He cited in the cases of Ardo v. Nyako (2014) 10 NWLR (Pt.1416) 591 at 634, paras A-E; PDP v. Sylva (2012) 13 NWLR (Pt.1316) 85 at 125 paras G-H, 126 paras B-D.
Learned senior counsel submitted that the decision of this Honourable Court in Appeal No CA/L/EP/HR/1073/2015, while sitting as Election Tribunal Appeal, cannot serve as the basis of the Appellant’s argument on the issue because: the decision was reached per incuriam; and the decision was an obiter dictum.
He cited the cases ofIsiaku & Ors v. Al Hassan & Ors (SC) (Unreported); Ardo v. Nyako (supra); and Omega bank Plc v. Govt Ekiti State (2007) 16 NWLR (Pt.1061) 445.
He also submitted that contrary to the arguments of the Appellants’ counsel, the case of Wada v. Bello (supra), did not lay down any new approach, but re-emphasised the principle of law regarding the issue of nomination and sponsorship of a candidate by a political party, as the Court in that case held that a person who is not a member of a political party and did not take part in the party’s primaries has no locus standi to question the nomination of that party.
He relied on Wada v. Bello (supra) at 431-432 paras H-A, page 445 para. H; and Tarzoor v. Ioraer & 2 Ors (2016) 3 NWLR (Pt.1500) 463 at 498-499.
Senior counsel argued that Section 87(9) of the Electoral Act is the statutory basis for the locus standi to challenge conduct of a primary by a political party, with its provisions to the effect that an aggrieved person who has sufficient interest to validly complain about said conduct must be a member of the party in question, and participated in the primaries. He further argued that the import of the foregoing is that the 1st Appellant cannot base his capacity to sue on the provision in question.
He relied on the cases of Charles v. Gov. Ondo State (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 427 at 601-602 paras H-B; Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 423.
He submitted that Section 138 of the Electoral Act is not relevant to this appeal, as it provides for the grounds upon which an election petition may be filed after the conduct of an election and that the doctrine of estoppel res judicata won’t apply here because the Appellant didn’t raise the issue at trial; the issue in this appeal is different because the issue at this Court in the case relied on dwelt on election into House of Representatives, while this one is based on the effect of nomination as Deputy Governorship candidate; and estoppel ought to be used only as a defence.
He relied on the following cases:
Osidele v. Sokunbi (2012) 15 NWLR (Pt.1324) 470 at 498; FRN v. Nwosu (2016) 17 NWLR (Pt.1541) 226 at 285-286 paras E-D; Gwede v. INEC (2014) 18 NWLR (Pt.1438) 56 at 87 paras B-F; Makun v. F.U.T Minna (2011) 18 NWLR (Pt.1278) 190 at 220-221, paras E-A, 233 paras C-D; Salawa Yoye v. Lawan Olubode and Ors (1974) 10 SC 220 at 222; and Ayuya v. Yonrin (2011) All FWLR (Pt.583) 1842 (SC).
In the reply brief learned senior counsel for the Appellants argued that the effect of applying the ordinary meaning of the words used in Section 87(10) of the Electoral Act, would be that an aspirant notwithstanding the fact that he is not a member of a political party, is not precluded from complaining that the political party have not complied with the political party’s guidelines or the Electoral Act in selection or nomination of a candidate of a political party for election.
He relied on the case of AC & Anor v. INEC (2007) LPELR-66(SC).
He also submitted that a combined reading and interpretation of Sections 87(10) and 138(1) of the Electoral Act provides the requisite interest for the Appellants to challenge the nomination of the 1st Respondent by the 2nd Respondent.
He relied on the case of Amaechi v. INEC &Ors (2008) LPELR-446 (SC).
RESOLUTION
The kernel of this issue is whether the Appellants, especially the 1st Appellant has the locus standi to contest the validity of the nomination of the 1st Respondent in the circumstances of this appeal. The principles of law with regards to locus standi are settled and to the effect that a person has the legal capacity to bring an action in Court with regards to any matter which he has sufficient interest, which is either an interest based on a right, obligation, duty or protection created by law.
The Apex Court gave a comprehensive exposition of the principle of locus standi in the case of BARBUS & CO. (NIG) LTD & ANOR v. OKAFOR-UDEJI (2018) LPELR-44501(SC)(Pp. 18-20, Paras. F-A) Per OKORO, J.S.C., thus:
The expression “Locus standi”, denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like “standing” or “title to sue”. A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are:- 1. The action must be justiciable. 2. There must be a dispute between the parties. There ought to be a liberal approach in applying the test. See Ojukwu v Ojukwu & Anor (2008) 12 SC (pt. 111) page 1, (2008) 18 NWLR (pt. 1119) 439, Attorney General Kaduna State v Hassan (1985) 2 NWLR (PT. 8) 483, Adesanya v President of the Federal Republic of Nigeria & Anor (1981) 550 page 112, (1981) LPELR – 147 (SC), Thomas & Ors v Olufosoye (1986) 1 NWLR (pt 18) 669, Emezi v Osuagwu & Ors (2005) 12 NWLR (pt 939) 340.
From the definition of locus standi, it is clear that for a person to have the legal capacity to sue over a matter, he must show sufficient interest in the subject matter of litigation and that will give him the access to institute proceedings in a Court of law. As was the case in relation to ascertaining reasonable cause of action, the pleadings of the party seeking to sue must disclose a cause of action vested in the plaintiff and the rights and obligations or interest of the plaintiff which have been violated before he can be vested with locus standi to sue.”
See: M.V BREUGHEL & ORS v. MONDIVEST LTD(2018) LPELR-44728(CA); OMINI v. ENO (2018) LPELR- 44195(CA); and MAJOMI & ORS v. HON. MINISTER, FCT & ORS (2018) LPELR-44446(CA).
The two pronged test as gleaned from the above which would make a Court consider a Plaintiff as having sufficient interest to sue on an issue is: (a) The action is justiciable. (b) There is a dispute between the parties.
When a matter is said to be justiciable, it means it is capable of being adjudicated on by the Court, because it is recognized by law and Appellants? counsel has tied the justiciability of the right of the 1st Appellant to sue on this matter to Section 87(10) of the Electoral Act and and 138(1) of the Electoral Act.
Now Section 87(10) of the Electoral Act provides thus:
“Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, for redress.”
In order to get the intention of this particular subsection, the section as a whole must be carefully examined, and the only logical conclusion that can be reached from such examination is that ‘Aspirant’ as used in the section, refers to any of the Aspirants of the political party conducting primaries or selection of candidates.
Section 138 of the Electoral Act provides thus:
(1) An election may be questioned on any of the following grounds, that is to say:
(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.
There is nothing in the above provisions that creates the right to sue which the 1st Appellant is alleging. The Sections have to do with nomination by a Political party, which is an internal affair and general grounds for challenging elections generally and I agree with 1st and 2nd Respondents’ counsel that the words are straightforward and ought to be given their ordinary meaning.
The doctrine of locus standi operates to limit the categories of persons who may bring an action over a particular matter, to the effect that busy bodies don’t unnecessarily clog the wheels of justice. The Appellants have not shown sufficient interest backed by law to justify their bringing of the action at trial.
Counsel relied on the case of Wada v. Bello to argue that the issue of nomination of a candidate is no longer within the private purview of a political party. A careful examination of that case reveals that this is not the case. The Supreme Court in that case re-emphasized the settled position of the law that nomination of a candidate is within the exclusive preserve of a political party as against disqualification from elections, which is a more public matter.
The principle of res judicata based on issues treated will not apply here also because the issue in contention in Appeal No CA/L/EP/HR/1073/2015 relied on by the Appellants, did not dwell on the issue of nomination of a candidate by a party, but has to do with disqualification of a candidate from election.
In line with the above, this issue is resolved in favour of the 1st and 2nd Respondents.
ISSUE TWO:
WHETHER IN THE CIRCUMSTANCES OF THIS MATTER 1ST RESPONDENT WHO KNOWINGLY ALLOWED HIMSELF TO BE NOMINATED IN MORE THAN ONE CONSTITUENCY OUGHT NOT TO HAVE BEEN DISQUALIFIED FROM CONTINUING TO REPRESENT THE IKEJA CONSTITUENCY AT THE NATIONAL ASSEMBLY BY VIRTUE OF THE PROVISIONS OF SECTION 37 OF THE ELECTORAL ACT (AS AMENDED) AND SECTION 68(1) OF THE CONSTITUTION (GROUNDS 2 AND 5)
Learned senior counsel for the Appellants argued that the lower Court was wrong to have held that there was nothing wrong in the 2nd Respondent?s nomination of the 1st Respondent, because the trial Court only focused on the part of Section 37 of the Electoral Act which dealt with nomination by more than one political party, while neglecting the part against nomination in more than one Constituency and was wrong to have relied on the authority of Nuhu Ahmed v. Lawal Yakubu (supra) to justify its holding, as that case dealt with the issue of nomination by more than one political party.
Learned senior counsel also argued that the import of Section 37 is that a person who knowingly allowed himself to be nominated for two distinct elective offices such as the 1st Respondent, would have his nomination void. He further argued that the 1st Respondent?s double nomination was in two different states of the Federation and by implication two different federal constituencies, in contravention of Section 37.
Senior counsel submitted that the trial Court could not validly rely on the case of Nwaogu v. Atuma & Ors (2012) LPELR 19048 SC, as the issue in that case bordered on the challenge to the 3rd Defendant attempt to represent Abia Central Senatorial District Area of Abia State, whereas he is an indigene of Abia South Local Government Area, whereas the issue here is whether the 1st Respondent who won election to represent Ikeja Constituency 1 of Lagos State can validly switch his constituency and the implication thereof in light of Section 37 of the Electoral Act and Section 68 (1)(b) of the Constitution.
He also submitted that the combined effect of Sections13(4) of the Electoral Act 2010 and Section 77 of the Constitution, is that membership of any constituency and participation in an election is predicated on registration within that constituency, that membership of that constituency is a precondition to nomination by a political party to represent that constituency and that once a member of a party has participated in the nomination process in a constituency, he is precluded from participating in another nomination process, as such will amount to double nomination.
On the other hand, learned senior counsel for the 1st and 2nd Respondents argued that there is nothing from the Appellant showing that the 1st Respondent is disqualified on the basis of Section 182(1) of the Constitution, which provides for such, and there is nothing showing that he was precluded from being nominated as a candidate to contest for the position of Deputy Governor as captured in Section 177 of the Constitution.
Learned senior counsel for the 1st and 2nd Respondent also argued that the subsequent nomination of the 1st Respondent for the position of Deputy Governor does not amount to double nomination, as the import of Section 37 of the Electoral Act 2010 (as amended)is that a person who is about to run for a political office on the platform of one party, cannot at the same time and at the same election seek the same political office on the platform of another party.
Learned senior counsel submitted that the right of the 2nd Respondent to nominate the 1st Respondent for the House of Representatives election held on the 28th of March, 2015, and subsequently for the Kogi State Governorship election held on the 21st November, 2015, not being in contravention of the Constitution and the Electoral Act or the Constitution of the political party cannot be interfered with by the Appellant or the Court.
He cited the cases of PDP v. Sylva (2012) 13 NWLR (Pt.1316) 85, pp.124, para.D, 125 paras B-C; 137, para. H; 138-139, paras F-A, 142-143, paras F-A, 152, para F-G; and Gwede v. INEC (2014) 18 NWLR (Pt.1438) P.56 at 93 paras C-E.
RESOLUTION
This issue has to do with whether the nomination of the 1st Respondent as Deputy Governor in another State while he was still a member of the House of Representatives, amounts to double nomination that would disqualify him from holding the seat.
The first leg of Appellants’ argument on this issue revolves around the import of Section 37 of the Electoral Act 2010 (as amended), and Section 68 (1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Section 37 of the Electoral Act provides thus:
“Where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency his nomination shall be void.”
The major reason why the above section will not apply to the facts grounding this appeal is that as at the time the 1st Respondent was nominated as a candidate for the position of Deputy Governor of his party, he was no longer a candidate vying for the position of a member of the House of Representatives. Thus he could not have been a candidate who allowed himself to be nominated in more than one constituency.
Section 68 (1)(b) of the Constitution provides thus:
“A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if:
(b) any other circumstances arise that, if he were not a member of the Senate or the House of Representatives, would cause him to be disqualified for election as a member.”
Appellants’ reliance on Section 68(1)(b) of the Constitution, seems to be based on the argument that if the 1st Respondent was still a candidate, he wouldn’t have been able to contest for Deputy Governor at the same time. The issue here however is that he was no longer a candidate at the time he contested for Deputy Governor. He was already an elected officer and I agree with the arguments of the 1st and 2nd Respondents’ counsel to the effect that the section of the Constitution which provides for disqualification based on election into another office is more apt. The section in question, that is Section 68(1)(d) provides thus:
“A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if he becomes President, Vice-President, Governor, Deputy Governor or a Minister of the Government of the Federation or a Commissioner of the Government of a State or a Special Adviser.”
The import of the above is clearly to the effect that the Constitution envisages a situation whereby a member of the National Assembly would vie for an Executive position. The law also clearly states that it is when he actually attains that position, that he would lose his current position.
It is settled law that the Court is enjoined not to import words and meanings into statutes where the intent is clear and would not lead to absurdity.
See: Paulinus Ikedigwe Vs Federal Republic of Nigeria (2010) LPELR 4295 (CA); Olusola Adeyeye Vs Simeon Oduoye & Ors (2010) LPELR 3623 (CA); Bob Vs Akpan (2009) LPELR 8519 (CA).
Appellants’ counsel also made submissions to the effect that once a person goes through the nomination process of a constituency, he cannot go through the nomination process for another constituency and retain the former one.
The sections upon which counsel based his arguments are Sections 13(4) of the Electoral Act 2010 (as amended) and Section 77 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Section 13(4) of the Electoral Act provides thus:
“Whenever an Electoral Officer on the direction of the Resident Electoral Commissioner enters the name of any person on the transferred voters’ list for his constituency he shall-
(a) assign that person to a polling unit or a polling area in his Constituency and indicate in the list the polling unit to which that person is assigned;
(b) issue the person with a new voters’ card and retrieve his previous voter’s card; and
(c) send a copy of the entry to the Electoral Officer of the constituency where the person whose name has been so entered was originally registered and upon receipt of this entry, that Electoral Officer shall delete the name from his voters’ list.?Section 77 of the 1999 Constitution provides thus:
(1) Subject to the provisions of this Constitution, every Senatorial district or Federal constituency established in accordance with the provisions of this Part of this Chapter shall return a member who shall be directly elected to the Senate or the House of Representatives in such manner as may be prescribed by an act of the National Assembly.
(2) Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house, shall be entitled to be registered as a voter for that election.
The above provisions govern in my view the transfer of a voter’s details and stipulates that every federal constituency shall send a member to the House. It does not provide that an elected officer would lose his seat if he contests for an elected position in another constituency or that the deletion of his voting details would truncate the wishes of the people of a constituency that voted him as a member.
This issue is consequently resolved in favour of the Respondents.
ISSUE THREE:
WHETHER 1ST RESPONDENT CAN TRANSFER HIS VOTING DATA OUTSIDE OF THE CONSTITUENCY WHICH HE IS ELECTED TO REPRESENT AT THE NATIONAL ASSEMBLY AND STILL CONTINUE TO REPRESENT THE SAID CONSTITUENCY? (GROUNDS 6 AND 7)
Learned counsel for the Appellants argued that the implication of Section 12 of the Electoral Act, which borders on the right to vote, is that validity to vote is conditioned upon a person ordinarily residing in, working in or originating from the Local Government Area Council Ward covered by the registration centre and the vote of the 1st Respondent which failed to meet this condition must be treated with suspicion because the 1st Respondent initially registered and voted at Ikeja only to have his voting data moved to Kogi.
Learned senior counsel also argued that even if the 1st Respondent validly exercised his right to transfer his voting data as provided in Section 13 of the Electoral Act, then he had by virtue of the transfer, terminated his membership of the Ikeja Constituency, because for the voting data of an Electorate to be transferred, such Electorate’s name must have been deleted from the Voter’s list in the initial constituency and by logical deduction, the said Electorate is no longer regarded as an electoral participant in the initial constituency.
Senior counsel further argued that the 1st Respondent has no claim to represent Ikeja constituency because he had transferred eligibility to another state; that the 1st Respondent does not meet the preconditions set out in Paragraph 12 of the Electoral Act; that it would be absurd for someone who resides or works in or originates from Ekinrin Ade, to represent Ikeja Constituency, which is about a thousand kilometres away, and that the transfer of the 1st Respondent’s voting data to Kogi makes the seat at Ikeja constituency vacant.
Senior counsel submitted that the circumstances of this appeal fall within the ‘special circumstances’ that can make the seat of a House of Representatives member vacant as provided for in Section 68(1)(b) of the 1999 Constitution, especially when same is read in conjunction with Section 13(4) of the Electoral Act.
He relied on the case of Martins v. Nicannar (1988) NWLR (Pt.74) 75; Wada v. Bello (supra); and Blacks Law Dictionary. Garner (2004) 8th Edition, West Publishing Co. P.260.
On the other hand, learned senior counsel for the 1st and 2nd Respondents argued that the subsequent decision of the 1st Respondent to contest for the position of Deputy Governor in Kogi State and the transfer of his voting data by the 3rd Respondent could not constitute circumstances that would cause him to vacate his seat as envisaged by Section 68(1)(b) of the Constitution.
Learned senior counsel also argued that Section 68(1)(d) of the Constitution is more apposite with the facts of this appeal, as it is to the effect that the holder of an elected office can contest for another elective office and it is only when the office holder becomes either the president, vice, governor or deputy, that he would be ordered to vacate his office as a member of the Senate or House of Representatives. He further argued that since the 1st Respondent had not been sworn in as either governor or deputy governor of Kogi State, the provisions would not affect him.
Senior counsel submitted that the issue of indigeneship or transfer of voter’s data cannot disqualify a person or make an elected officer vacate an already contested and won seat, and that the only implication is that it allowed the 1st Respondent to vote in the Ekinrin-Ade Ward of Ijumu Local Government Area of Kogi State.
He relied on the case ofNwaogu v. Atuma (2013) 11 NWLR (Pt.1364) 117 at 139, paras B-C, 146 paras B-C, 156, paras F-H, 160, paras E-H.
He also submitted that neither INEC through its regulations nor the provisions of the Electoral Act either in Sections 13(4),37 or any other section can operate to take away a right and entitlement which the Constitution has granted and as such the requirements of qualification for election into the House of Representatives under Section 66 and the conditions for vacation under Section 68 of the Constitution remain sacrosanct, with any interpretation seeking to vary the said constitutional provisions as unconstitutional, null and void.
He cited the case of INEC v. Musa (2003) 3 NWLR (Pt.806) 72 in support.
In the reply brief, learned senior counsel for the Appellants submitted that the use of the phrase ‘any other’ as contained in Section 68 of the Electoral Act provided an open-ended category of circumstances which will make a member of the Senate or House of Representatives vacate his seat and that these circumstances fall within the category.
He also submitted that the act of the 1st Respondent in question was inequitable, and he could not be allowed to transfer his voting rights outside the constituency he was elected to represent and at the same time continue to occupy the seat.
He cited the case of PDP & Ors v. Ezeonwuka & Anor P.105, paras B-C.
RESOLUTION
The complaint that was raised under this issue has been largely taken care of by the resolution of issue two. The thrust of the arguments seem to be a re-emphasis on the issue of the effect of the transfer of the voting rights of the 1st Appellant from Ikeja Constituency 1 to Kogi State. From the resolution of issue two based on the relevant provisions of the law, the implication of the transfer of 1st Respondent’s voting data to Kogi, meant he became eligible to contest in that State. Such a transfer cannot disqualify a sitting House of Representatives member from holding on to his seat.
The import of the above is that this issue is also resolved in favour of the 1st and 2nd Respondents.
In summation I find the appeal as lacking in merit and same is hereby dismissed. The Judgment of the lower Court in Suit No:FHC/L/CS/1680/2015 is affirmed.
There shall be costs of (N200, 000.00) Two Hundred Thousand Naira in favour of the 1st & 2nd Respondents against the Appellants.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JAMILU YAMMAMA TUKUR, JCA just delivered with which I agree and adopt as mine. I have nothing more to add.
TOBI EBIOWEI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA and I agree with the reasoning and the conclusion in dismissing the appeal for lacking in merit. I abide by the cost awarded.
Appearances:
C.N. Okakpu with him, Moyosola Oso and M.A. OkundeagiFor Appellant(s)
Gboyega Oyewole, SAN with him, Bayo Ayo Esq. and Kolawole Salami for 1st & 2nd Respondent.
J. Kelechi Ukaunu for 3rd Respondent.For Respondent(s)
