MR. OZEGBE LAWRENCE v. PEOPLES DEMOCRATIC PARTY (PDP) & ORS(2017)

OZEGBE LAWRENCE v. PEOPLES DEMOCRATIC PARTY (PDP) & ORS

In The Supreme Court of Nigeria

On Wednesday, the 12th day of July, 2017

SC.81/2017

RATIO

WHETHER A PARTY IN WHOSE FAVOUR AN ORDER HAS BEEN MADE BY THE COURT HAS A RIGHT OF APPEAL AGAINST THAT ORDER

…a party in whose favour an order has been made by the Court does not have a right of appeal against that order. See: Ekunola v. CBN (2013) 15 NWLR (Pt.1377) 224. The preliminary objection succeeds and the cross-appeal is struck out. PER KUMAI BAYANG AKA’AHS, J.S.C.

WHETHER A MEMBER OF A POLITICAL PARTY IS BARRED UNDER SECTION 31(5) OF THE ELECTORAL ACT 2010 (AS AMENDED) FROM BRINGING AN ACTION AGAINST ANOTHER MEMBER OF HIS POLITICAL PARTY FOR GIVING FALSE INFORMATION IN HIS AFFIDAVIT OR DOCUMENT TO THE ELECTORAL BODY

Section 31(5) and (6) of the Electoral Act 2010 (as amended) provides as follows:- “31(5)Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false. (6) If the Court determines that any of the information contained in the affidavit of any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election”. It is the contention of learned counsel for the appellant that a challenge of a candidate under Section 31(5) of the Electoral Act is not about a challenge to a party’s choice and he placed reliance on Garba v. Mohammed supra. The facts in that case are as follows:- On 8th and 10th December, 2014 the 2nd respondent; the All Progressives Congress (APC) conducted primary elections to select its candidate for the Niger South Senatorial District in the 2015 general elections. The appellant, the 1st respondent and two other candidates contested the said primaries. The 1st respondent was declared the winner while the appellant came second. The 1st respondent’s name was submitted to the Independent National Electoral Commission (INEC) as the 2nd respondent’s candidate for the Senatorial District election of 2015. The 1st appellant was dissatisfied with the outcome and appealed to the Appeals Committee of the 2nd respondent. His contention was that the 1st respondent was not a member of the party. According to the appellant the National Working Committee of the 2nd respondent (not the Appeals committee) recommended that the 1st respondent be disqualified. The appellant was given Form CF 001 and an INEC nomination form, which he completed and submitted to the Commission (3rd respondent). However the 3rd respondent refused to substitute his name without a Court order compelling it to do so. Consequently, the plaintiff/appellant filed an originating summons at the Federal High Court, Minna seeking various reliefs against the respondents on the ground that the 1st respondent was not a registered member of the 2nd respondent and therefore ought not to have been returned as the winner of the primary election held on 10/12/2014 and his name ought not to have been forwarded to INEC as the party’s candidate for the general election. He subsequently filed an amended originating summons wherein he sought for the determination of certain questions. One of the questions was:- “Whether having regard to the provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended) the 1st defendant is not disqualified from participating in the Niger South Senatorial Election 2015 having given false information as to his membership of the 2nd defendant in the affidavit, Form CF 007, submitted to the Independent National Electoral Commission”. One of the reliefs he sought for was an order of Court disqualifying the 1st defendant for giving false information in his affidavit of personal particulars, Form CF 001 and mandating the 3rd defendant to substitute the name of the 1st defendant with that of the plaintiff as the 2nd defendant’s candidate for Niger South Senatorial District in the March 2015 general elections. Upon being served with the originating summons the 1st respondent filed a counter affidavit and written address in opposition. He also filed preliminary objections challenging the appellant’s suit and the Courts jurisdiction to entertain it. The learned trial Judge entered judgment in favour of the appellant and dismissed the 1st respondent’s preliminary objection. Being dissatisfied with the decision, the 1st respondent appealed to the Court of Appeal. The appeal was allowed and the decision of the trial Court in favour of the plaintiff was set aside for lack of jurisdiction. The plaintiff/appellant subsequently appealed against the judgment of the Court of Appeal. This Court allowed the appeal, set aside the judgment of the Court of Appeal and restored the judgment of the Federal High Court, Minna. I agree with the submission of learned counsel for the appellant that the decision of this Court in Garba v. Muhammed supra answered the question that a member of a party is not barred under Section 31(5) of the Electoral Act 2010 (as amended) from bringing an action against another member of his political party for giving false information in his affidavit or document to the electoral body. The decision in APGA v. Anyanwu & Ors supra is distinguishable on the facts since no allegation of making a false declaration was made in that case as has been done in this case. The two issues which the appellant formulated for determination in APGA v. Anyanwu were on the membership of the All Progressive Grand Alliance (APGA) and they are as follows:- 1. Is it correct for the Court below to determine this appeal on merit without setting the challenge of jurisdiction of the Court below to hear and determine the suit itself? 2. Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the Court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 or at all? Where the words used in a statute are clear and unambiguous, the construction of those words must be based on the ordinary plain meaning of the words. See: African Newspapers of Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Fred Egbe v. Yusuf (1992) 6 NWLR (Pt.245) 1; Olanrewaju v. Governor of Oyo State (1992) 11 – 12 SCNJ 92; (1992) 9 NWLR (Pt. 255) 335. The use of the phrase “a person” in Section 31(5) of the Electoral Act is clear and unambiguous and does not admit of two meanings. It does not restrict the action to be taken only to members of other Political parties. Furthermore the application to be made to the commission in Section 31(4) of the same Act for the copy of the nomination form, affidavit and any other document submitted by a candidate is opened to everybody. It follows that the decision to go to Court to prove that a candidate who has been nominated to contest in the general election can be undertaken by anybody and not just the members of an opposing political party. And it is only the Court that can issue an order disqualifying the candidate from contesting the election. The provision does not derogate or in anyway impinge on the powers of a political party to decide who becomes their member as the membership of the political party is not justiciable. It has been said times without number that Courts have no business dabbling into any political question which remains the exclusive preserve of the political parties; consequently the decisions in cases such asOnuoha v. Okafor (1983) 2 SCNLR 244; Lado v. C.P.C. (2011) 18 NWLR (Pt. 1279) 689; P.D.P. v. Sylva (2012) 13 NWLR (Pt.1316); ANPP v. Usman (2008) 12 NWLR (Pt.1100) 1 which deal with the membership of political parties and the power of the political parties to keep their members in check is still extant. This appeal therefore has merit and it is allowed. A challenge of a candidate under Section 31(5) of the Electoral Act 2010 (as amended) is not a challenge to a party’s choice of which candidate to sponsor. PER KUMAI BAYANG AKA’AHS, J.S.C.

MEANING OF “A PERSON” AS USED IN SECTION 31(5) OF THE ELECTORAL ACT 2010 (AS AMENDED)

The operative words in Section 31(5) of the Electoral Act therefore are, “a person”. The determination is a matter of interpretation. I seek to state that in the interpretation of statutes, the law is trite and well entrenched that where the legislative words are clear and unambiguous, the Count must interpret and apply the words in their plain and ordinary meaning. This Court has held in a long line of cases that, it is not for the Court to re-draft a statute especially where the wordings are devoid of ambiguity or confusion. See Kotoye v. Saraki (1994) 7 NWLR (Pt.357) page 414 where this Court said thus at page 427 of the report:- “It is a settled cardinal principle of statutory interpretation that where in their ordinary meaning the provisions are clear and unambiguous, effect should be given to them without resorting to external aid.” Also in the case of Attorney – General, Abia State v. Attorney-General of the Federation (2005) 12 NWLR, (Pt.940) 452 at 503 and 516 again, this Court had this to say:- “A Court is not entitled to read into a statute words which are excluded expressly or impliedly from it. Thus, where the provisions of a statute are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid to interpret it. The solemn and sacred duty of the Court is to interpret the words used in the section by the legislation and give them their intended meaning and effect.” See also the cases of Awolowo v. Shagari & Ors. (1979) NSCC 87; Ogun State v. Federal Government (1982) 1-2 SC 13; Attorney-General of Bendel State v. A-General of the Federation and Ors. (1981) 10 SC 1 and Amadi v. N.N.P.C. (2000) LPELR – 4451. For all intents and purposes, the use of the words, “a person” presupposes any person. It is also open ended to all and at the same time inclusive of all and without restriction or exclusion. The fact that one is a member of a particular political party or not, is of no relevance but is all embracing. PER CLARA BATA OGUNBIYI, J.S.C

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria

Between

OZEGBE LAWRENCE Appellant(s)

AND

PEOPLES DEMOCRATIC PARTY (PDP)
2. HON. FRIDAY OSANEBI
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): The appellant as Claimant sued Hon. Friday Osanebi and Peoples Democratic Party (PDP) (now 2nd and 1st respondents respectively) in the Delta State High Court, Asaba seeking for:-
(a) A declaration that the affidavit and documents submitted to the 3rd defendant by the 1st defendant in his nomination as the candidate of the 2nd defendant as the candidate of the Ndokwa East Constituency for the election into the 2015 general elections into the Delta State House of Assembly contain several falsehood (sic) and that the 1st defendant is therefore not qualified to contest the said election.
(b) An order of the honourable Court disqualifying the 1st defendant from contesting the 2015 general election into the State House of Assembly as a candidate of the 2nd defendant for the Ndokwa East State Constituency or for any other constituency.
(c) An order of perpetual injunction restraining the 3rd defendant from accepting the 1st defendant for Ndokwa East State Constituency for the 2015 general election into the Delta State Constituency or for any other constituency.

Both 1st and 2nd respondents filed preliminary objections to the claimant’s suit. The trial Court heard the two separate applications and delivered its ruling in respect of the 2nd application on 14/12/2015 and struck out the suit on the ground that the claimant has no locus standi to institute the suit.

The claimant felt aggrieved and appealed against the said ruling while the 1st defendant (now 2nd respondent) filed a notice of cross-appeal. The lower Court upheld the order striking out the suit for lack of jurisdiction and dismissed the appeal. This prompted the further appeal to this Court. Strangely the appellant cross-appealed against a decision in his favour.

The appellant submitted four issues for determination which were distilled from the five grounds of appeal which accompanied the notice of appeal. The issues are-:
3.01 Whether the decision in APGA v. Senator Anyanwu & Ors (2014) 7 NWLR (Pt.1407) 541 was that a member of a political party does not have the locus standi to challenge any false declaration by a candidate of his political party under S. 31(5) of the Electoral Act 2010 (as amended) Grounds 1 and 3.

3.02 Whether the lower Court was not bound by the pleadings of the parties. Ground 2.
3.03 Whether a member of a political party is excluded or barred under S.31(5)of the Electoral Act (as amended)from bringing a suit against a candidate of his political party upon a reasonable ground that such candidate has given false information in his affidavit or documents to the electoral body. Ground 4.
3.04 Whether the lower Court was right in holding that the failure of the trial Court to deliver a ruling in respect of the 2nd respondent’s motion challenging the competence of the appellants suit did not breach the appellant’s right to fair hearing Ground 5.
I will peremptorily deal with the cross-appeal.

An appellant cannot also cross-appeal. The two terms are incongruous. In any event, the learned Justices of the Court below (Oseji, Adumein and Oniyangi JJ. CA) agreed with the submission that the signature on top of F. A. Onuzurike Esq and K. T. N. Nwanebo Esq who were the plaintiff’s counsel should be appropriated to any of the counsel and so the failure to appropriate the signature to any of them did not vitiate the competence

of the statement of claim. Therefore a party in whose favour an order has been made by the Court does not have a right of appeal against that order. See: Ekunola v. CBN (2013) 15 NWLR (Pt.1377) 224. The preliminary objection succeeds and the cross-appeal is struck out.

The 1st respondent formulated four issues in the appeal which are the same as the issues formulated by the appellant.

The 2nd respondent submitted three issues for determination. The first issue is the same as Issue No. 1 in the appellant’s brief. The other issues are:-
2. Whether the case of the appellant before the trial Court was predicated on his participation in the primary election of the Political Party (PDP), the 1st respondent herein.
3. Whether the decision of the lower Court occasioned any miscarriage of justice.
The 1st and 3rd respondents repeated the issues in the appellant’s brief.

This appeal is centred mostly on the application of the judgment of this Court in APGA v. Senator Anyanwu supra.
This is encapsulated in issues 3.01. and 3.03 of the appellants brief. In the judgment of the lower Court per Adumein JCA

at pages 265-266 of the record he held thus:-
“The Supreme Court has held in a plethora of cases that “membership of a political party is not justifiable with particular reference to Section 31(5) of the Electoral Act 2010 (as amended) under which the appellant is claiming locus standi, the Supreme Court, per Kekere-Ekun JSC stated in All Progressive Grand Alliance (APGA) v. Senator Christiana N. D. Anyanwu & 2 Ors (2014) 7 NWLR (Pt.1407) 541 at 577 that:-
“Since the sponsorship of candidates is the prerogative of the political party, it would be absurd to interpret the provisions of Section 31(5) above as permitting members of the same political party to challenge the party’s choice in Court”.
The appellant asked this Court to interpret the term a person used in Section 31(5) of the Electoral Act 2010 (as amended) to mean any person” including himself having regard to the circumstances of this case. I will decline to succumb to this invitation. To accede to the interpretation of Section 31(5) of the Electoral Act, 2010 (as amended) as suggested by the learned counsel for the appellant,

is to directly refuse to be bound by or overrule the clear and unambiguous decision of the Supreme Court in All Progressive Grand Alliance v. Senator Christiana N. D. Anyanwu & 2 Ors (supra)”.

Learned counsel for the appellant submitted that the decision of a Court is the ratio decidendi and not the orbiter dictum and the issues presented for adjudication in APGA v. Anyanwu were two namely:-
1. Whether Senator Chris Anyanwu was a member of the All Progressive Grand Alliance (APGA); and
2. Whether Senator Chris Anyanwu contested the primary election conducted by the All progressive Grand Alliance (APGA) for Imo East Senatorial Zone for the 2011 general election into the Senate of the Federal Republic of Nigeria.

It was within these confines that Hon. Independence Chiedoziem Ogunewe contended that Senator Chris Anyanwu was not a member of APGA. Consequently the issue of the application of Section 31(5) of the Electoral Act 2010 (as amended) was not before the Court. It is the decision in Garba v. Mohammed (2016) 14 NWLR (Pt. 1537) 114 that has answered the question whether a member of a party is excluded or barred under

Section 31(5) of the Electoral Act 2010 (as amended) from bringing an action against a candidate of his political party upon reasonable ground that such candidate has given false information in his affidavit or documents to the electoral body.

All the respondents contended that since the appellant and the 2nd respondents are members of the same political party, the appellant lacks the locus to challenge and question the prerogative right of the 1st respondent on its choice of the 2nd respondent as the candidate for the election since the right to nominate candidates for election is vested in the Political Parties and therefore a question within the Political parties which is non justifiable citing the following cases in support:-
Lado v. CPC (2011) 18 NWLR (Pt. 1279) 689; Onuoha v. Okafor (1983) 2 SCNLR 244 and PDP v. Sylva (2012) 13 NWLR (Pt.1316) 85.

It was the submission of counsel that the decision of this Court in APGA v. Anyanwu (2014) 7 NWLR (pt.1407) 576-577 has laid to rest the issue that the appellant cannot anchor his locus standi on Section 31(5) of the Electoral Act 2010 (as amended). It was submitted that Garba v. Mohammed

supra relied on by the appellant is not applicable to this case.

its candidate for the Niger South Senatorial District in the 2015 general elections. The appellant, the 1st respondent and two other candidates contested the said primaries. The 1st respondent was declared the winner while the appellant came second. The 1st respondent’s name was submitted to the Independent National Electoral Commission (INEC) as the 2nd respondent’s candidate for the Senatorial District election of 2015. The 1st appellant was dissatisfied with the outcome and appealed to the Appeals Committee of the 2nd respondent. His contention was that the 1st respondent was not a member of the party. According to the appellant the National Working Committee of the 2nd respondent (not the Appeals committee) recommended that the 1st respondent be disqualified. The appellant was given Form CF 001 and an INEC nomination form, which he completed and submitted to the Commission (3rd respondent). However the 3rd respondent refused to substitute his name without a Court order compelling it to do so.
Consequently, the plaintiff/appellant filed an originating summons at the Federal High Court, Minna seeking various reliefs against the respondents on the

ground that the 1st respondent was not a registered member of the 2nd respondent and therefore ought not to have been returned as the winner of the primary election held on 10/12/2014 and his name ought not to have been forwarded to INEC as the partys candidate for the general election. He subsequently filed an amended originating summons wherein he sought for the determination of certain questions. One of the questions was:-
“Whether having regard to the provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended) the 1st defendant is not disqualified from participating in the Niger South Senatorial Election 2015 having given false information as to his membership of the 2nd defendant in the affidavit, Form CF 007, submitted to the Independent National Electoral Commission.
One of the reliefs he sought for was an order of Court disqualifying the 1st defendant for giving false information in his affidavit of personal particulars, Form CF 001 and mandating the 3rd defendant to substitute the name of the 1st defendant with that of the plaintiff as the 2nd defendant’s candidate for Niger South Senatorial District in the

March 2015 general elections.
Upon being served with the originating summons the 1st respondent filed a counter affidavit and written address in opposition. He also filed preliminary objections challenging the appellant’s suit and the Courts jurisdiction to entertain it. The learned trial Judge entered judgment in favour of the appellant and dismissed the 1st respondent’s preliminary objection.
Being dissatisfied with the decision, the 1st respondent appealed to the Court of Appeal. The appeal was allowed and the decision of the trial Court in favour of the plaintiff was set aside for lack of jurisdiction. The plaintiff/appellant subsequently appealed against the judgment of the Court of Appeal. This Court allowed the appeal, set aside the judgment of the Court of Appeal and restored the judgment of the Federal High Court, Minna.
I agree with the submission of learned counsel for the appellant that the decision of this Court in Garba v. Muhammed supra answered the question that a member of a party is not barred under Section 31(5) of the Electoral Act 2010 (as amended) from bringing an action against another member of his political

party for giving false information in his affidavit or document to the electoral body.
The decision in APGA v. Anyanwu & Ors supra is distinguishable on the facts since no allegation of making a false declaration was made in that case as has been done in this case. The two issues which the appellant formulated for determination in APGA v. Anyanwu were on the membership of the All Progressive Grand Alliance (APGA) and they are as follows:-
1. Is it correct for the Court below to determine this appeal on merit without setting the challenge of jurisdiction of the Court below to hear and determine the suit itself
2. Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the Court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 or at all
Where the words used in a statute are clear and unambiguous, the construction of those words must be based on the ordinary plain meaning of the words. See: African Newspapers of Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Fred Egbe v. Yusuf (1992) 6 NWLR (Pt.245) 1; Olanrewaju v.

Governor of Oyo State (1992) 11 12 SCNJ 92; (1992) 9 NWLR (Pt. 255) 335.
The use of the phrase “a person” in Section 31(5) of the Electoral Act is clear and unambiguous and does not admit of two meanings. It does not restrict the action to be taken only to members of other Political parties. Furthermore the application to be made to the commission in Section 31(4) of the same Act for the copy of the nomination form, affidavit and any other document submitted by a candidate is opened to everybody. It follows that the decision to go to Court to prove that a candidate who has been nominated to contest in the general election can be undertaken by anybody and not just the members of an opposing political party. And it is only the Court that can issue an order disqualifying the candidate from contesting the election.
The provision does not derogate or in anyway impinge on the powers of a political party to decide who becomes their member as the membership of the political party is not justiciable. It has been said times without number that Courts have no business dabbling into any political question which remains the exclusive preserve of the

political parties; consequently the decisions in cases such asOnuoha v. Okafor (1983) 2 SCNLR 244; Lado v. C.P.C. (2011) 18 NWLR (Pt. 1279) 689; P.D.P. v. Sylva (2012) 13 NWLR (Pt.1316); ANPP v. Usman (2008) 12 NWLR (Pt.1100) 1 which deal with the membership of political parties and the power of the political parties to keep their members in check is still extant.
This appeal therefore has merit and it is allowed. A challenge of a candidate under Section 31(5) of the Electoral Act 2010 (as amended) is not a challenge to a party’s choice of which candidate to sponsor. The case is remitted to the High Court of Delta State, Asaba and should be dealt with expeditiously. No order on costs is made.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother AKA’AHS JSC just delivered.

I agree with his reasoning and conclusion that the appeal has merit and should be allowed.

The provisions of Section 31(5) of the Electoral Act, 2010, as amended are very clear and unambiguous. The Section provides thus:

“Any person who has reasonable

grounds to believe that any information given by a candidate in the affidavit or any document submitted by the candidate is false may file a suit at the Federal High Court, High Court of a State or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false.

The real issue for determination in this appeal is whether a member of a political party is excluded from filing an action under Section 31(5) of the Electoral Act, 2010, as amended, against a fellow member of the political party.

It is not in dispute that appellant and 2nd respondents are members of the Peoples Democratic Party (PDP) who contested the party’s primary election for nomination to contest the 2015 General Election to the Ndokwa East State constituency of Delta State. The primary election which was won by the 2nd respondent was conducted on the 29th day of November, 2011. The action was instituted by writ of summons followed by a Statement of Claim. The lower Courts are of the view that the matter falls within the purview of the domestic affairs of the political parties for which the Courts has no

jurisdiction. Reliance has been placed on the decision of this Court in the case of APGA Vs ANYANWU & ORS. (2014) All FWLR (Pt. 735) 243 at 150, 265 and 267.

I have carefully gone through the decision in the case in question and found same distinguishable on the facts in that no allegation of a criminal nature was made in that case as has been done in this case. The issue was on membership of All Progressive Grand Alliance (APGA).

The two issues decided by this Court are as follows:
1. Is it correct for the Court to determine this appeal on merit without settling the challenge of jurisdiction of the Court below to hear and determine the suit itself.
2. Whether the question of membership of a political party is justiciable to invoke the jurisdiction of the Court below to determine same under the procedure enacted by Section 31 (5) of the Electoral Act, 2010 or at all”
At page 264 of the report, the Court answered issue 2 as follows:-
“It is therefore settled beyond any discourse that the course of action before the trial Court related to the membership of a political party. There is a prethora of decisions

of this Court to the effect that membership of a political party is the domestic affairs of the party concerned and the Courts will not be involved in deciding who the members of a political party are”

From the provisions of Section 31(5) of the Electoral Act, 2010, as amended supra, it is not in doubt that it confers locus standi on any person” whether a member of a political party or not to invoke the jurisdiction of the High Court in accordance with the said provisions and the Court has the requisite vires to hear and determine his case: See Garba Vs Mohammed & Ors. (2016) 16 NWLR (Pt.1537) 114.

It is for these reasons and the more detailed reasons contained in the lead Judgment that I too hold that the appeal has merit and is consequently, allowed while the cross appeal by the appellant is misconceived and is consequently struck out.

In view of the fact that the action was commenced by writ of summons, and no evidence has been heard, the case is remitted to the trial Court for trial before another Judge.

I abide by the consequential orders made in the lead Judgment including the order as to costs.

Appeal allowed.

CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege of reading in draft the lead judgment by my learned brother Aka’ahs, JSC. I agree that there is no substance in the cross appeal which same is also struck out by me.

On the merit of the main appeal, the facts are well spelt out in the lead judgment. The law central to this appeal is Section 31(5) and (6) of the Electoral Act 2010 (as amended) which reproduction states as follows:-
“31(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or Federal Capital Territory against such person seeking a declaration that the information contained in the affidavit is false.
(6) If the Court determines that any of the information contained in the affidavit of any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

It is pertinent to say that the main issue or question, in this appeal

centres around the appellants issue 3 which is reproduced hereunder:-
Whether a member of a political party is excluded or barred under S.31(5) of the Electoral Act 2010 (as amended) from bringing a suit against a candidate of his political party upon a reasonable ground that such candidate has given false information in his affidavit or documents to the electoral body.

The operative words in Section 31(5) of the Electoral Act therefore are, a person”. The determination is a matter of interpretation.
I seek to state that in the interpretation of statutes, the law is trite and well entrenched that where the legislative words are clear and unambiguous, the Count must interpret and apply the words in their plain and ordinary meaning. This Court has held in a long line of cases that, it is not for the Court to re-draft a statute especially where the wordings are devoid of ambiguity or confusion. See Kotoye v. Saraki (1994) 7 NWLR (Pt.357) page 414 where this Court said thus at page 427 of the report:-
“It is a settled cardinal principle of statutory interpretation that where in their ordinary meaning the

provisions are clear and unambiguous, effect should be given to them without resorting to external aid.”
Also in the case of Attorney – General, Abia State v. Attorney-General of the Federation (2005) 12 NWLR, (Pt.940) 452 at 503 and 516 again, this Court had this to say:-
“A Court is not entitled to read into a statute words which are excluded expressly or impliedly from it. Thus, where the provisions of a statute are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid to interpret it. The solemn and sacred duty of the Court is to interpret the words used in the section by the legislation and give them their intended meaning and effect.”
See also the cases of Awolowo v. Shagari & Ors. (1979) NSCC 87; Ogun State v. Federal Government (1982) 1-2 SC 13; Attorney-General of Bendel State v. A-General of the Federation and Ors. (1981) 10 SC 1 and Amadi v. N.N.P.C. (2000) LPELR – 4451.
For all intents and purposes, the use of the words, a person” presupposes any person. It is also open ended to all and at the same time inclusive of all and without restriction or exclusion. The fact that

one is a member of a particular political party or not, is of no relevance but is all embracing.

Contrary to the view held by the learned counsel for the respondents, the interpretation has nothing to do with the power of a political party in choosing its own candidate.

The lower Court was in great error therefore when it affirmed the decision of the trial Court which relied on the judgment of this Court in the case of APGA v. Anyanwu (2014) All FWLR (Pt. 735) 243.

In other words, I agree with the learned counsel for the appellant that the judgment of this Court in APGA v. Anyanwu (supra) was not predicated on Section 31(5) of the Electoral Act 2010 (as amended), but wrongly misconceived by the respondents’ counsel herein. The issues raised before the trial Court in APGA v. Anyanwu supra related squarely to questions of membership of a political party and participation in the primary election conducted by the party for the Senatorial Zone for 2011 general election. Hence and in principle, the application of Section 31(5) of the Electoral Act 2010 (as amended) was not before the Court.

The confirmation of this is clear when

regard is had to the judgment of this Court per Kekere-Ekun, JSC wherein it was held thus:-
“It is therefore settled beyond any discourse that the course of action before the trial Court related to the membership of a political party. There is a plethora of decisions of this Court to the effect that membership of a political party is the domestic affairs of the party concerned and the Courts will not be involved in deciding who the members of a political party are.

For reasons best known to the trial Court, it relied and leaned heavily to the aspect of the judgment of this Court that said thus:-
“Since the sponsorship of candidates is the prerogative of the political party, it would be absurd to interpret the provisions of S.31(5) above as permitting members of the same political party’s choice in Court.”

With all said and done, what was of significance was the initial issues before the trial Court and which were based on the claim which must be the same, right through to the Supreme Court and which cannot change. Where an issue was not made out of trial Court or even of the lower court, it cannot emerge of the Supreme

Court from nowhere. The origin must have been firmly established. This is not the case in the matter now before us.

The appellant in this case is alleging falsehood against the 2nd respondent, whom he submits is disqualified under Section 31(5) and (6) of the Electoral Act from contesting the election. As rightly submitted on behalf of the appellant, the facts of this case, are completely different from the facts of APGA v. Senator Anyanwu & Ors under reference (supra).

The principle of law applicable to a party seeking to question the membership of a political party as in APGA v. Senator Anyanwu & Ors (supra) is different from that of a party who is challenging the falsehood of a candidates documents submitted to the electoral body as it is the case herein which must be proved beyond reasonable doubt. The two cases are therefore very much distinguishable.

On all fours with the appeal now before us is the authority in the case of Garba vs. Mohammed & Ors (2016) 16 NWLR (Pt.1537) 114 wherein one of the issues raised for determination at the trial Court via originating summons was:-

“2. Whether having

regard to the provisions Section 31(5) & (6) of the Electoral Act 2010 (as amended), the 1st defendant is not disqualified from participating in the Niger South Senatorial Election 2015 having given false information to his membership of the 2nd defendant in the affidavit, form CF 001, he submitted to the Independent National Electoral Commission. At pages 155 F – G, 164 B – D and 171 D – E the Supreme Court held that by S.31(5):
Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or a document submitted by that candidate is false may file a suit at the Federal High Court, the High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false.”

The foregoing has given a clear sky line of a similarity between the case at hand and Garba vs. Mohammed & Ors (supra).

For all intents and purposes therefore, I seek to restate that in APGA vs. Anyanwu & Ors (supra), the provision of Section 31(5) of the Electoral Act 2010 (as amended) was not on issue before the Apex Court. Consequently, any remark made

thereon must be an obiter as rightly argued by the learned counsel for the appellant. However, same cannot be said of Garba vs. Mohammed & Ors and also the case under review which are calling squarely for the interpretation of Section 31(5) of the Act.
I seek to say further that the claim in APGA v. Anyanwu & Ors was not justiciable unlike the case now under consideration. The said issue is therefore resolved in favour of the appellant.

My learned brother Aka’ahs, JSC has done justice to this appeal. I adopt his judgment as mine and rely on the comprehensive reasoning and conclusion arrived at by my brother and also allow this appeal in terms of the lead judgment. I further abide by all the consequential orders made therein.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The facts that gave rise to this appeal have been fully set out in the lead judgment. I adopt the summary as mine in making a few comments in support of the lead judgment.

Although the appellant has formulated four issues for determination, I am of the view that the crux of this appeal is to be found in Issue 1, to

wit:
“Whether the decision in APGA Vs Anyanwu & Ors. (supra) was that a member of a political party does not have the locus standi to challenge any false declaration by a candidate of his political party under Section 31(5) of the Electoral Act 20120 (as amended).”

The decision in APGA Vs. Anyanwu is reported in: (2014) 7 NWLR (Pt.1407) 541; (2014) 2 SC (Pt.1) and (2014) ALL FWLR (Pt.735) 243.

In holding that the appellant lacked the locus standi to institute his action before it, the trial Court relied on the following finding of this Court in APGA Vs. Anyanwu (supra) per Kekere-Ekun, JSC:
“It is clear that the above provisions relate to a “candidate’ sponsored for election by a political party after the conduct of party Primaries. In other words, it presumes that the Political Party has made its choice of candidates after employing the direct or indirect method provided for in Section 87(2), (3) and (4) of the Electoral Act. The relevant Political party having submitted the names of the candidates it proposes to sponsor in the election along with the required affidavits, it is the duty of INEC to publish the personal

particulars of the candidates in the constituency where they intend to contest the election to afford any opposing party the opportunity to challenge same. Since the sponsorship of candidates is the prerogative of the Political Party, it would be absurd to interpret the provision of Section 31(5) as permitting members of the same Political party to challenge the Party’s choice in Court.”
The lower Court affirmed the decision of the trial Court.

It is contended by learned counsel for the appellant that the only issues before this Court in APGA Vs Aiyanwu (supra) were:
(1) Whether it was proper for the lower Court to determine the appeal before it on the merit without settling the challenge of jurisdiction of the Court below to hear and determine the suit and
(2) Whether the question of membership of a political party, it justiciable to invoke the jurisdiction of the Court below to determine same under the procedure enacted by Section 31(5) of the Electoral Act, 2010 at all.

It is submitted that since the application of Section 31(5) of the Electoral Act was not an issue before this Court, the aspect of the judgment touching

in Section 31(5) of the Electoral Act, as amended, was a mere obiter. It is further contended that the facts of APGA Vs Anyanwu which challenged the appellant’s membership of political party are distinguishable from the facts of the instant case where it is contended that the documents submitted by the 2nd respondent to the 3rd respondent contained falsehood, which therefore made him liable to be disqualified under Section 31(5) and (6) of the Electoral Act. Learned counsel referred to the decision of this Court in Garba Vs Mohammed & Ors. (2016) 16 NWLR (Pt.1537) 114 where it was held that Section 31(5) of the Act permits any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or a document submitted by that candidate is false, may file a suit at the Federal High Court, the High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false. In other words, that Section 31(5) does not foreclose the right of any aggrieved person, whether a member of the same party or not to seek the reliefs provided for.

On behalf of the respective

respondents it is contended that the lower Courts are bound by the decision of this Court in APGA Vs Anyanwu (supra) and that in any event the false information or declaration alleged to have been made in the 2nd respondent’s Form CF001 does not relate to any of the constitutional requirements for contesting election into the Delta State House of Assembly.

I think learned counsel for the appellant was on the right track when he argued that the facts of this case are distinguishable from the facts in APGA Vs Anyanwu (supra). The issue that arose in APGA Vs Anyanwu was strictly on whether the respondent was a member of the All Progressives Grand Alliance (APGA) and therefore qualified to contest the primary election on the party’s platform to select the party’s candidates for the Senatorial seat in dispute and whether the question of membership of a political party is justiciable. The issue of submitting false information via Form CF001 did not arise.

It was in this con that it was reaffirmed that the question of membership of a political party is not justiciable. I am of the considered view that the case of APGA Vs Anyanwu was wrongly

applied by the two lower Courts in this case. Section 31(5) of the Electoral Act, 2010, as amended, empowers any person with reasonable grounds to believe that any information given by a candidate is false to institute an action before any of the High Courts to seek a declaration that such information is false.
I therefore agree with my learned brother, KUMAI BAYANG AKA’AHS, JSC, that in the circumstances of this case, the appellant had the requisite locus standi to file the suit before the trial Court, notwithstanding the fact that he and the 2nd respondent are from the same party. I agree that this appeal is meritorious and should be allowed. I allow it. The judgment of the lower Court is hereby set aside. It is hereby ordered that the suit be remitted to the trial Court for hearing before another Judge.

I abide by the consequential orders including the order for costs.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Aka’ahs, JSC, obliged me with the draft of the leading judgment just delivered now. I am in agreement with His Lordship that this appeal, being meritorious, should be allowed. Appeal allowed. I

hereby enter an order remitting the case to the High Court of Delta State for expeditious disposal.

Appearances