OLADEJO BABATUNDE MUNIR & ANOR v. OLOWO ROTIMI EMMANUEL & ORS
(2015)LCN/8024(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of November, 2015
CA/L/EP/HA/1004/2015
RATIO
STATUTORY INTERPRETATION: THE MEANING OF THE WORD ‘SHALL’ AS USED IN THE PROVISION; WHETHER THE IMPORT OF THE WORD ‘SHALL’ CONNOTES IMPERATIVENESS
The word “shall” as used in the provision connotes imperativeness or mandatoriness in implementation and does not give room for discretion neither did it provide for any other option. In other words the notice to the Independent National Electoral Commission (INEC) by any political party intending to hold any convention, congress, or meeting convened for the purpose of electing members of its executive committee or other governing bodies or nominating candidates for any of the elective offices specified under the Electoral Act shall be not less than 21 days and accordingly any activity carried out pursuant thereto without the requisite notice to INEC shall be a nullity for non compliance with the provisions of Section 85(1) of the Electoral Act. See ATAI v. DAGANA (2012) INEC LAW REPORT (vol. 1) page 823 when this court per EJEMBI EKO JCA held inter alia at pages 541 to 542 that:-
“The provisions of Section 85(1) of the Electoral Act 2010 as amended, have not been inserted for fun. They are imperative, considering the object the Act intended to secure. In the words of TOBI JSC, in UGWU v. ARARUME supra at page 449, ‘it is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of the political party to dictate the pace in any way if likes, without any corresponding exercise of due process.’ The ultimate mischief the lawmakers have inserted Section 85 into the Electoral Act, 2010 for is to curb the brigandage of the powerful within the political class. INEC as umpire general has been vested with the function of supervising and monitoring the process of internal democracy within the political parties.” per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
STATUTORY INTERPRETATION; HOW TO INTERPRET THE WORDS OF A STATUTE
The case of UGWU v. ARARUME cited Supra is quite apposite to the effect that where the words of a statute are clear and unambiguous. It should be interpreted in the con of its ordinary and natural meaning. See also PDP v. INEC (2014) 17 NWLR (PT 1437) 525 AT 558 where the Supreme Court in emphasising on this principle of interpretation of Statutes held inter alia as follows:-
“The cardinal principle in the interpretation of Statutes is that the meaning of statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any motion that may be entertained as to what is just and expedient. The literal rule of interpretation is a way preferable unless it would lead to absurdity inconsistency with the provisions of the statute whole.” See also CPC v. INEC (1012) 1 NWLR (pt 1280) 106, AG NASARAWA STATE v. AG PLATEAU STATE (2012) 10 NWLR (pt 1309) 419; ANPP v. GONI (2012) 7 NWLR (PT 1298) 147. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
PRACTICE AND PROCEDURE: WHETHER IT IS MATERIAL TO GIVE REASONS FOR A DECISION OF A COURT
However, having reached a correct decision the reasons for the said correct decision will not alter the scenario, because it is now trite law that where a decision of a court is right, the reason given for so holding is immaterial. See UBA LTD v. ACHOR (1990) 6 NWLR (pt. 156) 254; DAIRO v. UBN PLC (2007) 16 NWLR (pt. 1059) 99, in ARISA v. STATE (1988) NWLR (PT 83) 386, it was held by the Supreme Court that an appellate court is concerned primarily with the point whether a decision appealed against is right or wrong and not necessarily whether the reasons for the decision are right or wrong. If the decision is right it will be upheld notwithstanding the fact that a wrong reason was given for the decision. See also ODUKWE v. OGUNBIYI (1998) 8 NWLR (pt. 561) 339, JIKANTORO v. DANTORO (2004) 5 SCM 68. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
ABIMBOLA OBASEKI ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. OLADEJO BABATUNDE MUNIR
2. PEOPLES’ DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. OLOWO ROTIMI EMMANUEL
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National and States Houses of Assembly Tribunal (Panel I) sitting at Ikeja, Lagos State and delivered on the 17th day of September 2015 in a petition No. NA/LEGH/EPT/L/S/22/2015 by S.C. ORIJI (CHAIRMAN) B.F ETUK (MEMBER) and K. DABO (MEMBER) wherein the petitioners (now Appellants) petition was dismissed.
The 1st Appellant was a candidate of the 2nd Appellant (Peoples Democratic Party (PDP) for the election conducted on the 11th day of April 2015, as member to represent SHOMOLU I Constituency in the Lagos State House of Assembly.
The 1st Respondent was also the candidate of the 2nd Respondent (All Progressives Congress (APC) in the same election conducted by the 3rd Respondent on the said 11th April, 2015.
Prior to the election, the 2nd Respondent wrote a letter titled, “NOTICE OF SPECIAL CONGRESSES FOR THE NOMINATION OF CANDIDATES – 2015 GENERAL ELECTIONS” and dated 19-9-2014. It was addressed to the 3rd Respondent (Independent National Electoral Commission (INEC) wherein the said 3rd Respondent was officially informed that the 2nd Respondent had
?1
scheduled the party’s primary election particularly for the Lagos State House of Assembly for the Saturday 8th November, 2014.
Subsequently, the 2nd Respondent by another letter dated 18-11-2014 and titled REVISED DATE FOR THE CONDUCT OF PRIMARIES” wrote to inform the 3rd Respondent it has rescheduled dates for the conduct of primaries and it affects the state House of Assembly, to 1-12-2014.
On the said 1-12-2014 the primaries for the Lagos State House of Assembly were held by the 2nd Respondent and the 1st Respondent scored the highest number of votes and was accordingly nominated as the 2nd Respondent’s candidate to contest the 11-4-2015 election into the Lagos State House of Assembly.
Upon the conclusion of the said election which held on 11-4-2015, the 1st Respondent was declared winner and duly elected member to represent SHOMOLU I Constituency in the Lagos State House of Assembly by the 3rd Respondent (INEC).
The Appellants were not satisfied with the outcome of the said election and consequently filed a petition before the National and State Houses of Assembly Election Petition Tribunal, Lagos (henceforth called the “Tribunal”), wherein they sought the
2 following reliefs:
WHEREOF the petitioners pray that this petition be determined as follows:-
(a) A DECLARATION that 1st Respondent being the candidate of the 2nd Respondent in the election conducted by 3rd Respondent for the SHOMOLU I constituency of the Lagos House of Assembly on the 11th day of April, 2015 was not on the ballot and did not participate in the said election as the notice of the party primaries which produced the 1st Respondent fell short of the period of at least 21 days required by Section 85(1) of the Electoral Act, 2010 (As Amended).
(b) AN ORDER nullifying the declaration and return of the 1st Respondent as candidate of the 2nd Respondent as winner I the election conducted by the 3rd Respondent for the Shomolu I Constituency of the Lagos State House of Assembly on the 11th day of April, 2015 on the ground that the 1st Respondent ought not to, and was not qualified to have contested the said election having violated Section 85(1) of the Electoral Act, 2010 (As Amended).
(c) A DECLARATION that the 1st petitioner as candidate of the 2nd Petitioner having scored the highest number of the lawful votes of 12,066 cast in the election conducted by
3
the 3rd Respondent for the Shomolu I Constituency of the Lagos State House of Assembly on the 11th day April, 2015 amongst all the candidates eligible to contest in the said election be declared the winner and duly returned.
(d) AN ORDER declaring the 1st petitioner as candidate of the 2nd petitioner having scored the highest number of the lawful votes of 57, 681 cast in the election conducted by the 3rd Respondent for the Shomolu I Constituency of the Lagos State House of Assembly on the 11th day of April, 2015 amongst all the candidates eligible to contest in the said election be declared the winner and duly returned.
(e) AN ORDER directing the 3rd Respondent to withdraw forthwith the certificate of return issued to the 1st Respondent as candidate of the 2nd Respondent in the election conducted by the 3rd Respondent for the SHOMOLU I Constituency of the Lagos State House of Assembly on the 11th day of April, 2015 and to issue the 1st petitioner as candidate of the 2nd Petitioner forthwith with a certificate of return as winner of the election conducted by the 3rd Respondent for the SHOMOLU I Constituency of the Lagos State House of Assembly on the 11th day of
?4
April, 2015.
At the conclusion of trial, the parties filed and served their respective written addresses which they also adopted at the sitting of the tribunal on 13-7-2015. The Tribunal subsequently delivered its judgment on the 17-7-2015 wherein the Appellant petition was dismissed.
Aggrieved with the outcome of the said judgment, the Appellants filed a Notice of Appeal on the 30-09-2015.
Briefs of Argument were thereafter filed and served by the parties except the 2nd Respondent who did not file any brief or appear at the hearing of the appeal on 2-11-2015 when all the other parties adopted their respective Briefs of Arguments.
In the Appellants’ Brief of Argument dated 15-10-2015 and filed on 16-10-2015 two issues were raised for determination as follows:-
(1) Whether the Trial tribunal was right in its conclusion that the purpose of the notice required under Section 85(1) of the Electoral Act, 2010 (as amended) is to enable INEC attend and monitor the primaries of political parties in order to perform its function under Section 86(1) of the Act . (Ground 1, 4, 7 and 9 of the Notice of Appeal).
(2) Whether in view of the respondents letter to the 3rd
5
Respondent dated 19-9-2014 (Exhibit R1) 5-11-2014 (Exhibit R2) and 18-11-2014 (Exhibit P4), the Trial Tribunal was right to have held that the 2nd respondent complied with the provisions of Section 85(1) of the Electoral Act, 2010 (as amended) in the conduct of its primary elections which led to the emergence of the 1st Respondent as its candidate for the Shomolu I constituency of seat in the House of Assembly election held on the 11th April 2015. (Grounds 2, 3, 5, 6, 8 and 10 of the Notice of Appeal.)
In the 1st Respondent’s Brief of Argument dated and filed on 23-10-2015 a sole issue was formulated as follows:-
“Whether the Trial Tribunal was right in holding that the 2nd Respondent complied with the provision of Section 85(1) of the Electoral Act 2010 (as Amended) and consequently dismissing the Appellant’s Petition?
As earlier stated, the 2nd Respondent did not file any Brief of Argument.The 3rd Respondent’s Brief of Argument is dated and filed on 27-10-2015 and two issues formulated in the Appellants’ Brief of Argument were adopted therein.
?The Appellants’ reply to the 1st Respondent’s Brief of Argument is dated and filed on 29-10-2015, while the Appellants’
6
reply to 3rd respondents Brief of Argument is dated and filed on 30-10-2015. In the said reply the Appellant raised the point which was also addressed at the hearing of the Appeal on 2-11-15 that the 3rd Respondent’s brief dated and filed on 27-10-2015 is incompetent and ought to be struck out, same having been filed outside the 5 days allowed by Paragraph 12 of the Court of Appeal Election Tribunal and Court Practice Direction, 2011 which requires a Respondent to file his Brief of Argument within 5 days of service of the Appellant’s brief and that paragraphs 11(a) to (d) above shall apply mutatis mutandi to the 3rd Respondent’s Brief of Argument.
Relying in a number of authorities, this court was invited to look at the proof of service of the Appellant’s brief which shows that the 3rd Respondent was served on Thursday 22-10-2015 in which case the period of 5 days expired on Monday 26-10-2015. Moreso, given the sui generis nature of election matters which is time bound.
The case of PDP v. INEC (2014) 17 NWLR (pt 1437) 525 at 553 was cited in support. This court was then urged to strike out the said brief for being incompetent.
The response of the 3rd
7 Respondent’s counsel at the hearing of the appeal on the said 2-11-15 was that the 3rd Respondent was served on 22-10-15 at 6 pm so the 22-10-15 should not be counted in calculating the 5 days period allowed by the practice direction.
It is not in dispute that the 3rd respondent was served the Appellant’s brief on the 22-10-2015 and the 3rd Respondent’s brief in reply was filed on 27-10-2015 as shown in the records of this court and by the recent decision of the Supreme Court where a similar issue arose for determination. It seems that the wordings “The Respondent shall file in court his own Brief of Argument within 5 days of service of the Appellants’ brief” means that time begins to run from the day the process was served on the 3rd Respondent which is on the 22-10-2015 and a period of 5 days from the said 22-10-2015 will expire on the 26-1-2015. That is the case of PDP v. INEC cited supra by the Appellants. Therein the Supreme Court held at page 554 as follows:
”The use of the word “shall” in Paragraph 6 of the Practice Directions makes it mandatory. No party or this court has any discretion in the matter. The 26th Respondent was served on 22nd August 2014.
8
Its time started to run from that same date irrespective of the fact that it was served at 4pm or thereabout. Accordingly, its time for filing of the brief expired on 26th August 2014. The subsequent filing of the brief on 27th August 2014 was done outside the time allowed by the Practice Directions. See CPC v. INEC (2011) 18 NWLR (PT 1279) 493; ACN v. NYAKO Supra.” On the whole I hold that the briefs of the 26th Respondent filed on 27th August 2014 having been filed in flagrant disobedience to Paragraph 6 of the Practice Directions is incompetent and is hereby struck out.”
On the strength of the above cited authority of the Supreme Court, the 3rd Respondent’s time to file its Brief of Argument starts to run on the same 22-10-2015 irrespective of whether it was served at 6pm or thereabout in which case it’s time for filing 3rd Respondents brief expired on the 26-10-2015. The subsequent filing of the said brief on 27-10-2015 was done outside the time allowed by the Court of Appeal Election Tribunals and Court Practice Direction 2011. Consequently the 3rd Respondent’s brief filed on 27-10-2015 was done in violation of Paragraph 12 of the said Practice
9 Direction. It is therefore incompetent and accordingly struck out.
That leaves the court with the Appellants and 1st Respondent?s briefs of Argument.
I had earlier set down the issues formulated for determination in the parties briefs of argument. I find that the sole issue raised in the 1st Respondent’s brief is more succinct and apposite for the proper determination of this appeal moreso that it is in tandem with the two issues raised by the Appellants. I will therefore adopt same to consider this appeal.
The issue is whether the trial Tribunal was right in holding that the 2nd Respondent complied with the provision of Section 85(1) of the Electoral Act 2010 (as amended), and consequently dismissing the Appellants petition?
Dwelling on this issue in their issues No.1 & 2 the Appellants counsel referred to Sections 85(1) and 36(1) of the Electoral Act 2010 (as amended) and raised the question as to their true interpretation or construction. He then cited the case of PDP v. INEC (2014) 17 NWLR (PT 1437) 525 AT 558 AND DANGANA v. USMAN on the literal Rule of interpretation. It was then submitted that the clear and unambiguous meaning of Section 85(1) of
10
the Electoral Act is that every political party is mandatorily required to give INEC 21 days notice of any Convention Congress, Conference or meeting convened for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under the Act. Therefore the conclusion of the tribunal, if allowed to stand will lead to absurdity and inconsistency with the provisions of the Electoral Act 2010 (as amended).
It therefore argued that the defect arising from the failure of the 2nd Respondent to give adequate notice of at least 21 days of the conduct of its primaries to the 3rd Respondent is fatal and cannot be remedied by the attendance of the 3rd Respondent to the said primaries because the requisite notice as required by law was not given. He added that by Section 85(2) the attendance and observance of any convention, meeting or conference by the 3rd Respondent is not a sine qua non to the validity of same.
?It was therefore contended that the literal meaning of Section 85(2) of the Act, without the phrase, “with or without prior notice to the political party” is that the 3rd
11
Respondent is not under obligation to attend any such convention, congress, conference or meeting which is convened by a political party a to give prior notice of its intention to attend and observe same to the political party. Therefore Section 85(2) cannot be interpreted as a saving for an irregular notice issued in violation of Section 85(1) of the Act.
It was then strongly submitted that the requirements of Section 85 of the Electoral Act is mandatory and same has been upheld by the Supreme Court in the case of AMAECHI v. INEC (2008) 1 MJSC page 1 at 44 and HON AIDOKO ALI USMAN ATAI & ANOR v. OCHEJA EMMANUEL DANGANA & 3 ORS (2012) INEC LAW REPORT VOL. 1 523 at 541.
?It was added that the requirements for INEC to keep records of candidates who won primary elections have been taken care of by Section 31(1) of the Act and the same goes with Section 86(1). It was therefore contended that the conclusion of the Tribunal that the purpose of the 21 days notice is to give the INEC officials sufficient time to prepare to attend and monitor the party primaries is misconceived given the clear and unambigous words used in Sections 85(1) and 86(1) which wholly
12
admits of a literal interpretation vide AGBAJE v. FASHOLA (2008) 6 NWLR (pt. 1082) 1 at 45-56 and IFEZUE v. MBADUGHA (1984) NSCC (VOL.15) 314. It was contended that it was therefore wrong for the Tribunal to adopt the mischief Rule of interpretation and consequently refused to follow the decision in USMAN v. DANGANA which facts are almost in pari materia with the facts of the instant case.
On the meaning of the word “shall” he cited the case of NWANKWO v. YAR’ADUA (2010) 12 NWLR (pt 1209) 518 and ONOCHIE v. ODOGWU (2006) 5 NWLR (PT 975) 65 and argued that the word “shall” in the circumstance of this case and the provision under consideration has been held to be mandatory.
It was also submitted that Section 85(1) of the Electoral Act is totally different from Section 87 because, while Section 35(1) relates to the notice required to be given by Political Parties to INEC, Section 87 deals with the procedure for concluding primaries. Therefore, where the complaint relates strictly to Section 87 of the Act, it can be ventilated in accordance with Section 87(a) and as such becomes an intraparty affair but where it involves a complaint that the requisite notice is
13 not served on INEC then it relates to Section 85(1) and affects Section 65(2) of the 1999 Constitution which pertains to qualification that can be pursued in an election tribunal by virtue of Section 38(1) of the Electoral Act 2010 (as amended) as held in DANGANA v. USMAN supra.
On the issue whether the tribunal was right in holding that the primary election for the House of Assembly was postponed by the letter dated 5-11-2014 (i.e. before 8/11/2014). It was submitted that the Tribunal erred in law when it construed Exhibits R, R1, R2 and P4 solely as notices in relation to the conduct of primary elections for House of Assembly to the exclusion of others given that Exhibits R1 and P4 are separate and independent notices for different primaries. Therefore the decision of the Tribunal to use Exhibit R2 (NOTICE OF POSTPONEMENT) to purportedly extend the validity of Exhibit R1 is perverse.
It was then pointed out that Exhibit R1 did not schedule the conduct of primary elections into the House of Assembly Seats for 1-12-2014 therefore the only notice upon which the said primary elections was held on 1-12-2014 was Exhibit P4 which was issued in contravention of Section
14
85(1) of the Act, because the date fixed in Exhibit P4 for the House of Assembly primaries was issued on 18/11/14 which is 14 days to the said event and less than 21 days prescribed by Section 85(1) of the Act.
Learned Counsel posited that the 2nd Respondent sent out two letters to the 3rd Respondent by which notices of party primaries were given and that though the first notice of 19-9-2014 complied with the 21 days prescribed, the said primaries did not hold as scheduled by Exhibit R1. But the second letter dated 18-11-2014 was notice for the primaries to be held on 1-12-2014 which notice is only 14 days and as such less than 21 days and violates Section 85(1) of the Act and cannot be said to have revived Exhibit R1 because both letters constitute different notices.
On the sui genesis nature of election related matters and the need to comply with the provisions of relevant laws in terms of the period to take any action he cited the following cases. EHINLAWO v. OKE (2008) 16 NWLR (PT 1113) 357; EZEIGWE v. NWAWULU (2910) 4 NWLR (pt. 1183) 159; AGBAKOBA v. INEC SUPRA; UGWU v. ARARUME (2007) 12 NWLR (PT 1048) 367.
?On the consequence of failure to comply with
15
mandatory provisions of a statute. He held on the following cases MACFOY v. UAC LTD (1962) AC 1621 ATAI v. DANGANA (2012) INEC LAW REPORT VOL. 1 523 AT 538; AMAECHI v. INEC (2008) 5 NWLR (pt. 108) 227 and UGWU v. ARARUME (2007) 12 NWLR (PT 1048) 367 and LASISI v. STATE (1013) 12 NWLR (PT 1367) 133.
This court was then urged to resolve the issue in favour of the Appellants.
Replying on the issues raised in the Appellants brief of argument in his own sole issue learned counsel for the 1st Respondent referred to Section 85(1) of the Electoral Act 2010 (as amended) to submit that the requirement of Section 85(1) of the Electoral Act is the giving of 21 days Notice to the 3rd Respondent (INEC) for the primaries to be conducted by the 2nd Respondent.
?He added that from the testimony of the Respondents two witnesses and the Exhibits R1, R2 and RR1 to RR7 tendered by them the 2nd Respondent was duly notified of the conduct of the 2nd Respondent’s primary election by the letter dated 19th September 2014 (Exhibit R1). It is also not in dispute that Exhibits RR1 to RR7 were subsequently sent by the 2nd Respondent to the 3rd Respondent consequent upon which the primary
16
election that produced the 1st Respondent as a candidate of the 2nd Respondent was conducted on the 2nd December 2014 with representatives of the 3rd Respondent in attendance.
It was further submitted that by the said notice dated 19-9-2014 to 2-12-2014 when the 2nd Respondent conducted its primaries show that the 3rd Respondent had 75 days notice of the party primary which produced the 1st Respondent as a candidate by the 2nd Respondent and the fact that the initial date of the party primary was rescheduled is irrelevant in the computation of the period of notice given by the 2nd Respondent to the 3rd Respondent and as such the 2nd Respondent is not obliged to give a fresh 21 days notice to the 3rd Respondent of the conduct of its rescheduled party primary apart from the previous notice given vide Exhibit R1.
Learned counsel further contended that the case of USMAN v. DANGANA (supra) heavily relied on by the Appellants is clearly distinguishable from the facts of the instant case and accordingly inapplicable and where the facts of a previous case are distinguishable from the facts of a letter case, the court hearing the letter case is not bound to place
17
reliance on same. EKWUOGOR INVESTMENT (NIG) LTD v. ASCO INVESTMENT LTD . (2011) 13 NWLR (PT 1265) 565 AT 587.
It was also submitted that from the totality of the evidence before the trial Tribunal, the 3rd Respondent was given ample notice in compliance with Section 85(1) of the Electoral Act by the 2nd Respondent of the party’s primary that produced the 1st Respondent as the (candidate of the 2nd Respondent. Therefore the 1st Respondent was validly nominated and sponsored by the 2nd Respondent as its candidate for the election which held on 11-4-2015. This court was urged to dismiss the Appeal and affirm the judgment of the trial Tribunal.
In the Appellants’ reply to the 1st Respondent’s brief of argument dated and filed on 29-1-2015 it was submitted that the plain, ordinary and natural meaning of the operational words in the provisions of Section 85(1) of the Act being “at least 21 days notice of any” is that every registered political party must mandatorily and of necessity give INEC a minimum of 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees other governing bodies or
18
nominating candidates for any of the elective offices specified under Electoral Act.
He added that a community reading of Sections 85(1) 85(4), 86(1) and 87 of the Electoral Act will further bolster the contention of the Appellants that the word “shall” as used in Section 85(1) of the Electoral Act deserved to be given its ordinary and natural meaning Vide C.P.C. v. LADO (supra), AMADI v. INEC (2913) 4 NWLR (pt. 1345) 595, OPARA v. SPDCN LTD. (2915) 14 NWLR (PT 1479) 307.
It was further submitted that the word “shall and at least 21 days notice of any” are clear and unambiguous and deserves to be given their plain, ordinary and natural meaning regarding their mandatoriness.
On the contention of the 1st Respondent’s counsel that the case of USMAN v. DANGANA supra is inapplicable to the facts of the instant case. It was contended that the distinction sought to be made by the 1st Respondent was also made but rejected by this court in Appeal No. CA/L/EP/GOV/751A/15, APC v. MR JOSEPH OLUJIMI KOLAWOLE AGBAJE & ORS in the Judgment dated 26th day of August, 2015 (unreported) at pages 19-21. When this court rejected the invitation not to follow the Supreme Court
?19
position in WAMBAI v. DONATUS (2014) 13 NWLR PAGE 223 on account of being per incuriam. This court was then urged to allow the appeal.
The provisions of Section 85 of the Electoral Act as above set out has been the subject of judicial interpretation in a number of cases and I must add here that subsection (1) is very clear and unambiguous to the effect that every registered political party shall give the commission at least 21 days notice of any convention, congress, conference or meeting convened for the propose of electing members of its executive committees, other governing bodies or nominating candidates for any of elective offices specified under the Act.
The word “shall” as used in the provision connotes imperativeness or mandatoriness in implementation and does not give room for discretion neither did it provide for any other option. In other words the notice to the Independent National Electoral Commission (INEC) by any political party intending to hold any convention, congress, or meeting convened for the purpose of electing members of its executive committee or other governing bodies or nominating candidates for any of the elective offices specified
20
under the Electoral Act shall be not less than 21 days and accordingly any activity carried out pursuant thereto without the requisite notice to INEC shall be a nullity for non compliance with the provisions of Section 85(1) of the Electoral Act.
See ATAI v. DAGANA (2012) INEC LAW REPORT (vol. 1) page 823 when this court per EJEMBI EKO JCA held inter alia at pages 541 to 542 that:-
“The provisions of Section 85(1) of the Electoral Act 2010 as amended, have not been inserted for fun.
They are imperative, considering the object the Act intended to secure. In the words of TOBI JSC, in UGWU v. ARARUME supra at page 449, ‘it is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of the political party to dictate the pace in any way if likes, without any corresponding exercise of due process.’ The ultimate mischief the lawmakers have inserted Section 85 into the Electoral Act, 2010 for is to curb the brigandage of the powerful within the political class. INEC as umpire general has been vested with the function of supervising and monitoring the process of internal democracy within the political parties.”
At page 548
21 to 549 it was held per BADA JCA that:
“Under Section 85(1) of the Electoral Act 2010 (as amended) a registered political party like PDP shall give INEC at least 21 days notice of any convention, congress, conference, meetings convened for the purpose of electing or nominating candidates for any of the elective offices specified under the Electoral Act. See Section 87(4)(c) of the Electoral Act 2010 (as amended). This provision is mandatory. And from the evidence before the trial Tribunal. It is clear that the said 21 days notice was not given to INEC. It is therefore my view that the primary election conducted on 28/1/2011 which culminated in the purported nomination of the 1st Respondent as PDP candidate for election to the office of senator representing Kogi East Senatorial District was done in violation of Section 85 of the Electoral Act, 2010 as amended. The said primary election is therefore illegal.”
See also AMAECHI v. INEC (2008) 5 NWLR (PT 1080) 227 where the Supreme Court PER OGUNTADE JSC held at page 296 that:
“Under Section 85 of the Electoral Act 2006. It is mandatory that political parties inform INEC of the date and time of holding a convention or
22
congress summoned for the purpose of nominating candidates for any of the elective offices under the electoral Act.”
The conclusion of the matter, from the above cited authorities is that the provision of Section 85(1) of the Electoral Act 2010 (as amended) imposes a mandatory duty an any political party seeking to organize a convention, meeting, conference or congress for the purpose of electing members or nominating candidates for any elective office specified in the Electoral Act to give at least 21 days notice to the INEC for the purpose of the aforementioned gathering and any such notice which is less than the prescribed minimum of 21 days renders any such meeting or gathering or anything done pursuant thereto a nullity for non compliance with the provisions of Section 85(1) of the Electoral Act 2010 (as amended). The Section is very clear and unambiguous and needs no grammatical embellishment for the purpose of reading any other meaning, into it by way of any contrary interpretation. The case of UGWU v. ARARUME cited Supra is quite apposite to the effect that where the words of a statute are clear and unambiguous. It should be interpreted in the con
23
of its ordinary and natural meaning. See also PDP v. INEC (2014) 17 NWLR (PT 1437) 525 AT 558 where the Supreme Court in emphasising on this principle of interpretation of Statutes held inter alia as follows:-
“The cardinal principle in the interpretation of Statutes is that the meaning of statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any motion that may be entertained as to what is just and expedient. The literal rule of interpretation is a way preferable unless it would lead to absurdity inconsistency with the provisions of the statute whole.”
See also CPC v. INEC (1012) 1 NWLR (pt 1280) 106, AG NASARAWA STATE v. AG PLATEAU STATE (2012) 10 NWLR (pt 1309) 419; ANPP v. GONI (2012) 7 NWLR (PT 1298) 147.
I need however state emphatically that I agree entirely with the submission of the Learned Counsel for the Appellants to the effect that by the provision of Section 85(2) of the Act, the attendance and observance of any convention, congress, conference or meeting by INEC is not a sine quo non to the validity of same but the adequacy of the requisite notice of the convention, congress,
24
conference or meeting that determines validity of same. See AMAECHI v. INEC (supra) ATAI v. DANGANA (Supra).
Furthermore, once the statutory requirement of Section 85(1) is satisfied by the issuance of at least 21 days notice to the INEC a political party has the clear path to proceed with the convention, congress meeting etc and do not have to be concerned whether to not the INEC attends given the provision of Section 85(2) which gives INEC the option whether or not to attend any such convention, congress or meeting by the use of the permissive word “may”. Therefore the attendance of INEC to any meeting of a political party does not validate any breach of the provisions of Section 85(1) of the Act as held by the Trial Tribunal. This is therefore an erroneous interpretation of the said provision and the venture into the unwarranted terrain of mischief rule of interpretation by the Trial Tribunal when the words are very clear and unambiguous constitutes an attempt at blend oil with water.
?However, having reached a correct decision the reasons for the said correct decision will not alter the scenario, because it is now trite law that where a decision of a court is
25
right, the reason given for so holding is immaterial. See UBA LTD v. ACHOR (1990) 6 NWLR (pt. 156) 254; DAIRO v. UBN PLC (2007) 16 NWLR (pt. 1059) 99, in ARISA v. STATE (1988) NWLR (PT 83) 386, it was held by the Supreme Court that an appellate court is concerned primarily with the point whether a decision appealed against is right or wrong and not necessarily whether the reasons for the decision are right or wrong. If the decision is right it will be upheld notwithstanding the fact that a wrong reason was given for the decision. See also ODUKWE v. OGUNBIYI (1998) 8 NWLR (pt. 561) 339, JIKANTORO v. DANTORO (2004) 5 SCM 68.
Given the above settled state of the law as per Section 85(1) of the Electoral Act 2010 (as amended) the burning question is whether Exhibit P4, the letter dated 18-1-2014 and written by the 2nd Respondent informing it of the rescheduling of the 2nd Respondent’s primary constitute a notice to the 3rd Respondent in compliance with Section 85(1) of the Electoral Act 2010 (as amended) and whether it is independent of and totally detached from Exhibit R1 the original Notice dated 19-9-2014.
?For purposes of clarity the two documents, Exhibit R1 and
26
P4 are herein below reproduced.
EXHIBIT R1):-
ALL PROGRESSIVE CONGRESS
19th September, 2014.
APC/NHDQ/INEC/19/014/59.
The Secretary to the Commission,
Independent National Electoral Commission,
Zambezi Crescent,
Maitama – Abuja.
Dear Sir,
NOTICE OF SPECIAL CONGRESS FOR THE NOMINATION OF CANDIDATE-2015 GENERAL ELECTIONS.
Please be advised that our Party has scheduled to hold Primary Elections for the Nomination of Candidates in respect of the 2015 General Election as follows;
i. State Houses of Assembly – Saturday, 8th November, 2014.
ii. Governorship – Saturday, 15th November, 2014.
iii. House of Representatives – Monday, 24th November, 2014.
iv. Senate – Saturday, 29th November, 2014.
v. Presidential – Tuesday, 2nd December, 2014.
While hoping to receive your co-operation, please accept the assurance of my highest regards.
Thank you.
Yours faithfully,
For: All Progressives Congress (APC)
Hon. Mai Mala Buni
National Secretary
EXHIBIT P4:-
ALL PROGRESSIVE CONGRESS
18TH NOVEMBER, 2014.
APC/NHDQ/INEC/19/014/88
The Secretary to the Commission,
Independent National Electoral Commission,
Zambezi Crescent,
Maitama – Abuja.
Dear Sir,
REVISED DATE FOR THE CONDUCT OF PRIMARIES
Please be advised
27
that our Party has rescheduled dates for the conduct of Primaries as follows;
i. State Houses of Assembly – 1st December, 2014.
ii. Governorship – 4th December, 2014.
iii. House of Representatives -7th December, 2014.
iv. Senate – 8th December, 2014.
v. Presidential – 10th December, 2014
We expect that your officials will be there to witness the rescheduled process.
Please accept the assurance of our highest esteem.
Thank you.
Yours faithfully,
For: All Progressive Congress (APC)
Hon. Mai Mala Buni
National Secretary
To all intents and purposes, Exhibit R1 dated 19-9-2014 is a notice to 3rd Respondent (INEC) by the 2nd Respondent. It informs the 3rd Respondent of its intention to hold a special congress for the nomination of candidates for the 2015 general election.
Primary elections for nomination into the various offices were to be held at different dates between 8-11-2014 and 8-12-2014 with that of the House of Assembly slated for 8-11-2014.
?The notice given for the purpose of the said primary election for House of Assembly is about 51 days from 19-9-2014 to 24-11-2014 which is much more than the 21 days prescribed under Section 85(1) of the Act and gladly enough all
28
the parties agree that Exhibit R1 was a good notice in compliance with law.
The bone of contention is Exhibit P4 which is dated 8-11-2014 and titled as follows: REVISED DATE FOR THE CONDUCT OF PRIMARIES.
All the dates earlier scheduled for the primaries in Exhibit R1 were now rescheduled to new dates for the nomination into the various offices.
For the House of Assembly, it was rescheduled for 7-12-2014 from the original date of 24-11-2014.
For the Appellants, Exhibit P4 is a totally different notice independent of Exhibit R1 and given that it was issued on the 18-11-2014 for primaries that are to be held on the 7-12-14, the said notice falls short of the 21 days prescribed by Section 85(1) of the Act, more so that Exhibit R1 was extinguished by effluxion of time on Saturday 8-11-2014 when the primary elections for House Assembly failed to hold as scheduled.
?I have carefully studied the contents of Exhibits R1 and P4 and their import and my humble deduction therefrom is that in Exhibit R1, the 2nd respondent gave the 3rd Respondent notice of its intention to hold a special congress for the nomination of candidates for election into various offices including the
29
presidential, Governorship, Senatorial, House of Assembly, and State Houses of Assembly and by the said notice dated 18-9-2014 that of the House of Assembly was to hold on Saturday, 8-11-2014. But before the said date Exhibit P4 dated 18-11-2014 was sent to the 3rd Respondent and it was titled, REVISED DATE FOR THE CONDUCT OF PRIMARIES and signed by the same National Secretary of the 2nd Respondent who also signed Exhibit R1. The content of the said Exhibit P4 was earlier reproduced in this judgment and the intent is to inform the 3rd Respondent that the 2nd Respondent has rescheduled dates for the conduct of primaries for nomination into the aforementioned offices.
?In my humbly view the purport of Exhibit P4 is very simple and clear as crystal to the effect that it did nothing than to inform the 3rd Respondent that the primary elections for the nomination of candidates for election into various offices including the House of Representatives in the 2015 general election, which was by Exhibit R1 fixed for the 8-11-2014, 15-11-2014, 24-11-2014, 28-11-2014 and 2-12-2014 respectively has been rescheduled to new dates of 1-12-2014 (House of Assembly) 4-12-2014
30
(Governorship), 7-12-2014 (House of Representatives), 8-12-2014 (Senate) and 10-12-2014 (Presidential Convention) respectively.
There is therefore a link or connect between Exhibit R1 and P4 and they cannot be said to be independent notices as contended by the Appellants. The word “Reschedule” is defined by the English Dictionary as “To schedule again or at a different time.” In Oxford Advanced Learner’s Dictionary 7th edition at page 1214 it is defined thus: “to change the time at which something has been arranged to happen, especially so that it takes place later. Eg. “The meeting has been rescheduled for next week.”
This definition as simple as it is, I believe shuts up any further argument to the contrary as to the meaning of the word “Reschedule.”
For something or a programme, or an event to be rescheduled there must have been a prior or original schedule for it. For instance, a meeting of the Nigerian Bar Association scheduled for 28th November 2015 by a notice of meeting to members can by another notice to rescheduled to say, 7th December 2015 and such rescheduling does not have to change the agenda earlier prepared for the prior meeting. In the instant
31
case therefore I cannot but agree with the submission of the 3rd Respondent who incidentally is the recipient and beneficiary of the said statutory notice, that the letter dated 18-11-201 (Exhibit P4) by which the 2nd respondent rescheduled her primaries needs no further 21 days notice because Exhibit R1 which is the letter dated 19-9-2014 written by the 2nd Respondent as notice for its convention to the 3rd Respondent satisfies the requirement of notice as provided for under Section 85(1) of the Electoral Act 2010 as amended.
The argument by the Appellants that Exhibit R1 and P4 are separate notices does not hold water and therefore cannot be sustained in the circumstances of this case and the case of USMAN v. DANGANA relied on by the Appellants does not help their case in the sense that in USMAN’S case there were two different primaries conducted by the same party and the purported primary election that nominated the 1st Respondent, was held outside the period allowed by the Electoral Act 2010. There was also clear evidence that the notice given to INEC just three hours before the conduct of the primary election and INEC did write a letter formally warning
32
the 2nd Respondent against the holding of the senatorial primary and the said INEC did not attend same. That is entirely not the situation in the instant case where Exhibit R1 show that a notice of about 65 days was given to the INEC and before the expiration of same the 2nd Respondent wrote to reschedule the earlier dates given to INEC which it found acceptable and convenient and even attended all the primary elections as scheduled.
In the circumstance, this issue which is all embracing is resolved against the Appellants.
In the final result, I hold that this appeal lacks merit and it is hereby dismissed.
The judgment of the National and State Houses of Assembly Tribunal (Panel I) delivered on the 17th day of September 2015 is herby affirmed.
Parties to bear their costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I agree.
JAMILU YAMMAMA TUKUR, J.C.A.: I agree.
Appearances
Oluyemi Shoyoye with For Appellant
Kolawole R. Raimi and
A.C. Opatade (Miss)
Akin George For 1st Respondent
O.N. Akinniranye (Mrs) For 3rd Respondent
with L. Adeotu (Mrs)
Innocent Ochu
33
Appearances
Oluyemi Shoyoye with Kolawole R. Raimi and A.C Opatade (Miss)For Appellant
AND
Akin George
O.N. Akinniranye (Mrs) with L. Adeotu (Mrs) Innocent OchuFor Respondent
