OYEGOKE ROTIMI SAMUEL & ANOR v. MAKINDE RASHEED LANRE & ORS
(2015)LCN/8042(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of December, 2015
CA/L/EP/HA/1096/15
RATIO
ELECTION: PRIMARY ELECTION; WHETHER IT IS MANDATORY FOR INEC TO ATTEND ANY PRIMARY ELECTIONS
It is important to mention that the attendance of INEC at any primary elections has been made optional by reason of Section 85(2) of the Act which used the word “may”. In the case of EDEWOR v. UWEGBA & ORS (1987) LPELR-1009 (SC) (Pp. 45-46 paras. B-B: on the import of the word “may” the Supreme Court observed per NNAMANI, J.S.C.
“Generally the word ‘may’ always means ‘may’. If has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 SRNSW 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it…”
If the attendance of INEC is not mandatory but voluntary, the performance of its functions encapsulated under Section 86 (which is to keep records of the activities of all registered parties) cannot be tied inextricably to it. This is so because there are other avenues or channels through which INEC obtains records. However, I will not ignore the fact that obtaining record might be part of the reasons for mandating parties to notify INEC within 21 days of its primary erections.
This aspect of the Tribunal’s decision creating the impression that the attendance of INEC officials to the primaries could render the failure to give the requisite notice unimportant runs contrary to the wordings of Section 85(1) that “every registered political party shall give the commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
STATUTORY INTERPRETATION: HOW TO INTERPRET THE WORDS USED IN A STATUTE
When the words used in a statute are clear, unequivocal and unambiguous, the primary canon of interpretation which is literal rule requires that such words be given their ordinary, simple and natural meaning. See the case of NWAKIRE v. COP (1992) NWLR (PT. 241): In PDP v. INEC (2014) 17 NWLR (PT.1437) 525 AT 558 PARAS C-D where it was held:
“The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole.”
The Supreme Court in the case of DANGANA v. USMAN (2013) 6 NWLR (PT.1349) 50 AT 80 – 81 PARAS H- B cited by the Appellants also had this to say:
“Furthermore, where the words of a statute are clear, unambiguous and unequivocally express the intention of the lawmakers, effect must be given to them irrespective of whether that produces a harsh or inconvenient result.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
STATUTORY INTERPRETATION: PRIMARY ELECTION; THE LITERAL INTERPRETATION OF SECTION 85 (1)
A literal interpretation of Section 85(1) means that a political party shall give INEC 21 days notice of its primary elections and there is nothing in the section that dispenses with the required Notice not even the presence of all INEC officials at the primaries who attend without such notice. This is so because of the use of “shall” in the section. In the case of NWANKWO v. YAR’ADUA (2010) 12 NWLR (PT.1209) 513 SC AT Page 589 paras B-C the Supreme Court observed per Adekeye JSC:
“The foregoing is surely a mandatory provision because the operative word there is “shall”. The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.”
This Court adopted the Supreme Court’s decision in the case of JOHN v. IGBO-ETITI LOCAL GOVERNMENT AREA (2013) 7 NWLR (PT. 1352) 1 CA at page 15 paras A-E where it held per Okoro JCA:
“it is trite that whenever the word “shall” is used in an enactment, it connotes imperativeness and mandatoriness. It leaves no room for discretion at all.”
It is clear from the above cited cases that the word “shall” in the section has made giving 21 days notice to INEC mandatory. Failure to issue this notice renders the primary election so conducted a nullity. See the cases of AMAECHI v. INEC (2008) 1 MJSC 1-25 PAGE 1 AT PAGE 44; HON. AIDOKO ALI USMAN AND ANOR v. OCHEJA EMMANUEL DANGANA & 3 ORS INEC LAW REPORT (2012) VOL. 1 PAGE 523 AT PAGE 541. per. CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. OYEGOKE ROTIMI SAMUEL
2. PEOPLES? DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. MAKINDE RASHEED LANRE
2. A PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): At the election conducted on 11th April, 2015 by the Independent National Electoral Commission the 3rd Respondent, for a seat into Ifako Ijaye II Constituency in the House of Assembly, Lagos State, the 1st Appellant was the candidate of the 2nd Appellant (PDP) whereas the 1st Respondent was the candidate of the 2nd Respondent (APC). There were equally other parties that contested the election.
At the end of the elections, result was announced in which the 1st Respondent candidate for APC was declared winner of the election and returned as duly elected by the 3rd Respondent.
Dissatisfied with the outcome of the elections, the Appellants filed a petition at the National and State Houses of Assembly Election Petition Tribunal (Panel 3), Ikeja, Lagos on 2nd May, 2015 challenging the return of the 1st Respondent on the ground that the 1st Respondent was not eligible to contest at?the time the election was conducted. The summary of the fact on which the Appellants hinge this action is that the All Progressive Congress (APC) conducted its primaries for the House of Assembly on the 1st day of December,
1 2014 for which the Appellants claimed 21 days notice was not given to the 3rd Respondent (INEC) as required by Section 85(1) of the Electoral Act . Before the primary elections, the 2nd Respondent by a letter dated 19/9/2014 (EXHIBIT E) served notice on INEC that party primaries shall hold on the 8/11/2014. But before the date fixed for the primaries, the 2nd Respondent wrote to the 3rd Respondent again vide a letter dated 18/11/2014 (EXHIBIT B) informing it that the date for the primaries has been rescheduled to hold on 1st December, 2014.
The contention of the Appellants is that INEC was not given 21 days notice as required by the Electoral Act because the second notice contained in the letter of 18/11/14 was not up to 21 days. They consequently filed a petition claiming as follows:
?(a) A DECLARATION that 1st Respondent being the candidate of the 2nd Respondent in the election conducted by the 3rd Respondent for the IFAKO IJAYE II constituency of the LAGOS STATE HOUSE OF ASSEMBLY on the 11th 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 as candidate of the
2 2nd Respondent given by the 2nd Respondent to the 3rd 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 in the election conducted by the 3rd Respondent for the IFAKO IJAYE II Constituency of the Lagos State House Assembly on the 11th 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, 2015 (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 the 3rd Respondent for the IFAKO IJAYE II Constituency of the LAGOS STATE HOUSE OF ASSEMBLY on the 11th 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 12,066 cast in the election
3 conducted by the 3rd Respondent for the IFAKO IJAYE II constituency of the LAGOS STATE HOUSE OF ASSEMBLY on the 11th 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 IFAKO IJAYE II constituency of the LAGOS STATE HOUSE ASSEMBLY on the 11th April, 2015 and to issue the 1st Petitioner as candidate of the 2nd Petitioner forthwith with the a certificate of return as winner of the election conducted by the 3rd Respondent for the IFAKO IJAYE II constituency of the LAGOS STATE HOUSE OF ASSEMBLY on the 11th April, 2015.
The Respondents at the Trial filed their Replies to the petition. At the close of trial and after parties had adopted their final written addresses, the Tribunal delivered its judgment in favour of the Respondents thereby dismissing the Petitioners’ petition.
?Dissatisfied with the judgment of the Tribunal the Appellants filed Notice of Appeal on the 27th day of October, 2015
4 with eight grounds of appeal. In accordance with the Rules of this Honourable Court, Briefs were filed and exchanged by parties. The Appellants’ Brief is dated 12th November, 2015 and filed on the 13th November, 2015. The 1st and 2nd Respondents’ Brief is dated and filed 20th November, 2015. The 3rd Respondent’s brief is dated 17th day of November 2015 and filed on 20/11/15. The Appellants’ reply brief to the 1st and 2nd Respondents’ brief is dated and filed 23/11/15 and their reply brief to the 3rd Respondent?s brief is dated and filed 25/11/15.
The Appellants’ Brief which was settled by Chief Richard Oma Ahonaruogho, Chief (Mrs) Mojisola Ahonaruoghuo, Ikhide Ehighelua Esq. and others out of their eight grounds of appeal formulated two issues for determination to wit:
1. WHETHER IN VIEW OF THE 2nd RESPONDENT’S LETTERS TO THE 3RD RESPONDENT DATED 19/9/2014 (EXHIBIT E1), 5/11/2014 (EXHIBIT E1) AND 18/11/2014 (EXHIBIT B) THE TRIBUNAL WAS RIGHT TO HAVE DISMISSED THE APPELLANTS’ PETITION AND HELD THAT THE 2ND RESPONDENT COMPLIED WITH THE PROVISION OF SECTION 85(1) OF THE ELECTORAL ACT, 2010 (AS AMENDED) IN THE CONDUCT OF ITS PRIMARY ELECTIONS WHICH LED TO THE
5 EMERGENCE OF THE 1ST RESPONDENT AS ITS CANDIDATE FOR THE IFAKO IJAYE II CONSITUENCY SEAT IN THE HOUSE OF ASSEMBLY HELD ON 11TH APRIL, 2015. (GROUNDS 2, 3, 4 AND 5 OF THE NOTICE OF APPEAL)
2. WHETHER THE JUDGMENT OF THE TRIAL TRIBUNAL IS WRONG AND PERVERSE WHEN IT REFUSED TO UPHOLD/FOLLOW THE DECISIONS OF THE SUPREME COURT CITED BEFORE IT AND THEREFORE DISMISSED THE APPELLANTS’ PETITION. (GROUNDS 1, 6, 7 AND 8)
The 1st and 2nd Respondents’ Brief was settled by Dr Muis Banire SAN, R. A. O. Adegoke Esq, Toyo Olatunbosun Esq and others and it raised a sole issue for determination as follows:
1. WHETHER THE TRIBUNAL WAS RIGHT WHEN IT HELD THAT THE 2ND RESPONDENT COMPLIED WITH THE REQUIRED NOTICE UNDER SECTION 85(1) OF THE ELECTORAL ACT 2010 (AS AMENDED) (GROUNDS 1, 2, 3, 4, 5, 6, 7 AND 8).
The 3rd Respondent’s brief was settled by A.S. Onigemo Esq., and Babs Aniamashaun Esq. In their Notice of Intention to Contend that the judgment be affirmed on grounds other than those relied upon by the lower court, two grounds were set out as follows:
?1. The decision of the lower Tribunal dismissing the Petition be affirmed because there is material on record showing that the
6 Petitioners/Appellants admitted that the 1st Respondent was the candidate sponsored by the 2nd Respondent.
2. The decision of the lower Tribunal dismissing the Petition be affirmed for failure by the Petitioners to ask for a re-run of the election conducted on the 28th of March 2015 into the Apapa Federal Constituency of the House of Representatives and thereby rendering the Petition incompetent.
From the grounds of the Petition and the grounds for the contention, the 3rd Respondent formulated three issues for determination as follows:
1. WHETHER THE LOWER TRIBUNAL WAS RIGHT TO DISMISS THE PETITION OF THE APPELLANTS. (GROUNDS 1, 2, 3, 4, 5, 6, 7 & 8)
2. WHETHER THE TRIBUNAL CAN MAKE ANY FINDINGS OF FACT ON THE ALLEGED INVALID SPONSORSHIP OF THE 1ST RESPONDENT BY THE 2nd RESPONDENT (GROUND 1 OF THE NOTICE TO AFFIRM JUDGMENT ON OTHER GROUNDS)
3. WHETHER THE FACT THAT THE PETITIONERS DID NOT ASK FOR A RE-RUN OF THE ELECTION AS ONE OF THE RELIEFS THEY ARE SEEKING IS FATAL TO THEIR CASE.(GROUND 2 OF THE NOTICE TO AFFIRM THE JUDGMENT ON OTHER GROUNDS)
The 3rd Respondent’s issue one is covered by the Appellants’ issues. After Setting out the arguments of Counsel, I
7 shall consider the competence of the 3rd Respondent’s 2nd and 3rd issues formulated from the grounds in the notice to contend and thereafter the two issues formulated by the Appellant.
On issue one, the contention of the Appellants summarily is that 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 same cannot by any stretch of imagination be remedied by the purported attendance of the 3rd Respondent (INEC) of the said primaries for which the requisite notice was not furnished as required by law. He further submitted that by the provision of Section 85(2) of the Act, the attendance and observance of the Primaries by INEC is not sine qua non to the validity of same. Rather, it is the adequacy of the requisite notice that determines its validity. Learned Counsel submitted that by virtue of Section 85(2) of the Act, INECs presence at the primary election of a political party cannot be interpreted as a saving grace for an irregular notice issued in violation of Section 85(1) of the Act. Learned Counsel further submitted that the requirements of Section 85 of the
8 Electoral Act is mandatory, and has been upheld by the Supreme Court in many cases. He cited the following cases: AMAECHI v. INEC (2008) 1 MJSC 1-25 PAGE 1 AT PAGE 44; HON. AIDOKO ALI USMAN ATAI AND ANOR v. OCHEJA EMMANUEL DANGANA & 3 ORS INEC LAW REPORT (2012) VOL. 1 523 AT 541; AGBAJE v. FASHOLA (2008) 6 NWLR (PT 1082) 1 AT 45-46; IFEZUE v. MBADUGHA & ANOR (1984) NSCC VOL 15 314 AT 324 – 325 PARAGRAPHS 45-30.
Learned Counsel went to a great deal of trouble setting out the various canons of interpretation of statutes – the literal interpretation, the mischief rule of interpretation etc. and went on to submit that Sections 85(1) and 86(1) of the Electoral Act are clear and unambiguous and should be accorded their simple grammatical meaning that every political party is mandatorily required to give INEC of least 21 days’ notice of the conduct of its primaries.
On issue two, whether the judgment of the trial Tribunal is wrong and perverse when it refused to uphold/follow the decisions of the Supreme Court cited before it and therefore dismissed the appellants’ petition, Learned Counsel for the Appellants submitted that the Tribunal was wrong to have
9 held that INEC was duly notified as required by law; that the Notices issued by the 2nd Respondent were independent notices. Counsel argued that the letter dated 19th September, 2014 (EXHIBIT E) which slated primaries to hold on the 8th of November, 2014 complied with the requirement of Section 85(1) but expired from the date the Primaries were postponed. Counsel submitted that the letter dated 18th November, 2014 (EXHIBIT B) which slated primaries to hold on 1st December, 2015 the second notice, was an independent notice which ought to fully comply with the 21 days notice as required in the Electoral Act. Counsel further submitted that the judgment of the Tribunal was therefore perverse to have ignored the case he cited and rather upheld the election of the 1st Respondent on the ground that even though the Notices were independent of each other that such will only amount to non-compliance which is not substantial enough to affect the result of the election. Learned Counsel argued that it is wrong for the Tribunal to hold that the second letter (EXHIBIT B) revived the first (EXHIBIT E) since the failure to hold primaries on the dates conveyed in the first
10letter, terminated EXHIBIT E and as such there was nothing to revive.
Learned Counsel relied on the cases of ATAI v. DANGANA (2012) INEC LAW REPORT VOL. 1 PAGE 523 AT 538; EMENIKE v. PDP (2012) ALL FWLR (PT. 640) 1261; UGWU v. ARARUME (2007) 12 NWLR (PT.1048) PAGE 367 AT 486-487; MACFOY v. UAC LIMITED (1962) AC 162: AMAECHI v. INEC (2008) 5 NWLR (PT.108) PAGE 227: LASISI v. STATE (2013) 12 NWLR (PT.1367) PAGE 133 AT 146. On these authorities learned Counsel in summary submitted that any party primaries conducted in defiance of the mandatory stipulations of Sections 85(1) of the Electoral Act 2010 (as amended) is not just void but all votes cast in such election in favour of any candidate emerging from such void election, will be disregarded. Learned Counsel prayed the court to hold that the primary conducted on the 1st of December, 2015 was flawed for non-compliance with the Electoral Act. He submitted that since the 2nd Respondent failed to conduct a valid primary election and since they failed to produce a candidate to contest the general election, the purported participation of the 1st Respondent in the general election amounts to a nullity; and that the
11 votes ascribed to the 1st Respondent should not be considered in determining the winner of the election.
Learned Counsel for the 1st and 2nd Respondent submitted that the decision of the Tribunal cannot be faulted as the Tribunal arrived at the right conclusion that the letters conveying the notice to INEC of the primaries held on the 1st day of December, 2014 are not independent of each other. Learned Counsel submitted that the two notices have the same subject matter and that the first Notice was revived by the second notice.
Relying on the cases of UDEAGU v. BENUE CEMENT CO. PLC (2006) 2 NWLR (PT. 965) 600; ALHAJI M. K. v. FIRST BANK OF NIGERIA PLC (2011) LPELR-8971 (CA) PAGES 32-33 learned Counsel submitted that where more than one documents govern a particular transaction, no single document can be interpreted in isolation. He further submitted that EXHIBITS D1, D, AND C speak for themselves and that on the strength of the said Exhibits, that it is evident that the 2nd Respondent gave more than sufficient notice to the 3rd Respondent in respect of the Primaries which saw emergence of the 1st Respondent as the candidate of the 2nd Respondent. Referring to
12 the Tribunal’s decision of pages 396 to 398 of the Record of Appeal, learned Counsel submitted that the 2nd Respondent has fully complied with the provisions of Section 85(1) of the Electoral Act.
Learned Counsel also cited the cases of A.O.N v. NAMA (2014) 8 NWLR (PT.1408) 1 AT 61 – 62: AMAECHI v. INEC (2008) 5 NWLR (PT. 1080) 227 AT 296 and submitted that the combined effect of Sections 85(1) and 86(1) of the Electoral Act 2010 (as amended) is to ensure that the 3rd Respondent (INEC) monitors and attends the primary elections of political parties and to ensure that the 3rd Respondent keeps records of the activities of all the registered political parties. That the 3rd Respondent in fulfilment of these intentions, was present at the primaries conducted on 1st December, 2014.
Finally, Counsel argued that in any case, Section 85(2) of the Electoral Act 2010 (as amended) has whittled or watered down the mandatory provision of Section 85(1) of same Act since the section makes the monitoring and attendance of INEC at a primary election optional by the use of the word “may”. In all, learned Counsel concluded that the 3rd Respondent was duly notified; that it
13 monitored the primaries and that the 1st Respondent was validly elected.
Learned Counsel for the 3rd Respondent on their issue one, whether the lower Tribunal was right to dismiss the Petition of the Appellants submitted that the word “shall” in Section 85(1) is merely directory with regard to rescheduling on earlier notice. Counsel invited the Court to adopt a liberal interpretation to Section 85(1) of the Electoral Act to hold that the 2nd Respondent substantially complied with the provision of Section 85(1) of the Electoral Act; and that the lower Tribunal was right when it dismissed the Petition of the Appellants after considering Exhibits P4 and R1. Learned Counsel called on us to reject the argument of the Appellants that Exhibit P4 dated 18/11/14 should be the only exhibit the Tribunal should consider in coming to the conclusion whether or not there was compliance with the 21 days required under Section 85(1) of the Electoral Act. He submitted that the length of notice should be reckoned from Exhibit R1 dated 19/9/14 which complied with the requirement of Section 85(1) of the Electoral Act and that the Tribunal was right when it found that Exhibit P4 was
14 issued during the life span of Exhibit R1.
On their issue two, whether the Tribunal can make any finding of fact on the alleged invalid sponsorship of the 1st Respondent by the 2nd Respondent; Counsel submitted that the Tribunal cannot make any such finding of fact because the fact that the 1st Respondent was sponsored by the 2nd Respondent was admitted in the pleadings of the Appellants when they averred in paragraph 5 of their Petition as follows:
“That the 1st Respondent AYODEJI ADEBAYO JOSEPH was the candidate sponsored by the 2nd Respondent the All Progressives Congress (hereafter after called the “APC”) as its candidate for the Federal House of Representatives Election in respect of the Apapa Federal constituency (the CONSTITUENCY) of Lagos State. The 2nd Respondent is a duly registered political party in Nigeria.” (Underlining supplied)
Counsel argued that the above admission which needs no further proof contradicts the entire case of the Appellants. He submitted that given the admission by the Appellants that the 1st Respondent was sponsored by the 2nd Respondent for the election into the Apapa Federal House of Representatives, and the subsequent attempt
15 to challenge the said sponsorship, the Appellants’ case with regard to sponsorship must be dismissed. Counsel submitted that since the only ground for challenging the election and return of the 1st Respondent is with regard to sponsorship, the Tribunal ought to have dismissed the Petition on that additional ground.
On their issue three, whether the fact that the Petitioners did not ask for a re-run of the election as one of the reliefs they are seeking is fatal to their case; Counsel submitted that Section 140(2) of the Electoral Act States that where an election is nullified on the ground that the candidate who scored the highest votes was not qualified to contest the election, the Tribunal shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election. Counsel submitted that the Appellants failed to ask for a fresh election as stipulated by Section 140(2) of the Electoral Act and that it is trite that the court cannot grant a relief not asked for. He urged us to hold that failure to ask for a re-run renders the Petition of the Appellant incurably defective.
?Before dealing with the substance of the
16appeal, I think it is more convenient to dispose of the issues raised by the 3rd Respondent from his grounds in the Notice to contend. The first contention was that there was a conflict between the Appellants’ pleadings in paragraphs 5 and 15 of their petition.
?Paragraph 5 States:
“That the 1st Respondent AYODEJI ADEBAYO JOSEPH was the candidate sponsored by the 2nd Respondent the All Progressives Congress (hereafter after called the “APC”) as its candidate for the Federal House of Representatives Election in respect of the Apapa Federal Constituency (the CONSTITUENCY) of Lagos State. The 2nd Respondent is a duly registered political party in Nigeria.”
Paragraph 15 States:
“The Petitioners State that the Party Primary of the 2nd Respondent conducted on the 7th day of December, 2014 for House of Representatives which produced the 1st Respondent as its candidate was a nullity; the notice of which was given by the 2nd Respondent to the 3rd Respondent by letter of the and Respondent dated 18th November, 2014 reference APC/NHDQ/INEC/19/014/88 was less than a period of “at least 21 days” required by Section 85(1) of the Electoral Act, 2010 (as amended). …..”
?I do
17 not with respect see the conflict the 3rd Respondent is referring to. Paragraph 5 is a Statement of fact. The 1st Respondent was indeed sponsored by the 2nd Respondent which is indisputably a registered Political Party in Nigeria. The contention of the Appellants as stated in paragraph 15 is that the 1st Respondent was not qualified to contest the election because the primaries from which he emerged as the candidate of the 2nd Respondent was a nullity. If indeed the primaries were a nullity, then the 1st Respondent’s sponsorship by the 2nd Respondent would be invalid. With all due respect, it is my humble opinion that learned Counsel for the 3rd Respondent misconceived the stand of the appellants. The notice of contention on this ground is misconceived. Further, the issue did not arise in the lower court and cannot form a basis for a Respondent’s notice to contend. They are fresh issues which were not considered in the lower tribunal. Delta State Government v. Okon (2002) 2 NWLR (PT. 752) 665 at 684 C-E.
?The second issue formulated from the grounds in the notice to contend is whether the fact that the Appellants did not ask for a re-run of the election as required
18 by Section 140(2) of the Electoral Act is fatal to their case. This again is not a good ground for asking that the judgment be affirmed on grounds, other than those in the judgment of the Tribunal. It is an issue that should have been taken up at the preliminary stage of the hearing. Even at that stage, the error would not have been fatal to the case of the Appellant. The worst that would have happened is assuming the Appellants made out a good case: the Tribunal would have refused to return the 1st Appellant as duly elected. However, the Appellant’s case was dismissed at the Tribunal. This issue cannot therefore arise at this stage when the Court dismissed the petition. The issues formulated by the 3rd Respondent and the grounds stated in the Notice of intention to contend are not well founded and must be discountenanced. Be that as it may, it is necessary to point out that by Section 140(2) of the Electoral Act (as amended), where on election is nullified on the ground that the person who obtained the highest number of votes was not qualified to contest the election, the Tribunal shall not declare the person with the second highest votes as elected but
19 shall order a fresh election. Therefore even if the Appellants were successful in this petition, what the Tribunal would have done is to order a fresh election as provided for by Section 140(2) of the Electoral Act and not to declare the 1st Appellant the winner as prayed for by the Appellants.
An analysis of the submissions made by Counsel for all the parties in the appellants’ issues one and two which covers 3rd Respondent’s issue one will undoubtedly point to the crux of the contention which is whether in compliance with Section 85(1) the requisite 21 days notice was given to the 3rd Respondent. All other arguments revolve round this contention. That being the case, both issues will be dealt with together.
Let me begin by examining the relevant provisions of the law.
Section 85 Electoral Act provides as follows:
(1) Every registered political party shall give the commission at least 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 this Act.
?(2) The commission may with or
20 without prior notice to the political party attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of:
(a) Electing members of its executive committees or other governing bodies;
(b) Nominating candidates for an election at any level, and (c) Approving a merger with any other registered political party
(3) The election of members of the executive committee or other governing body of a political party, including the election to fill a vacant position in any of the aforesaid bodies, shall be conducted in a democratic manner allowing for all members of the party or duly elected delegates to vote in support of a candidate of their.
(4) Notice of any congress, conference or meeting for the purpose of nominating candidates for Area, Council elections shall be given to the commission at least 21 days before such congress, conference or meeting.”
Section 86(1) of the Electoral Act provides as follows:
“The commission shall keep records of the activities of all registered political parties.”
?Flowing from the above provisions, can it rightly be said that the Tribunal arrived at the right decision when it held
21 that the Notice provided for in Section 85(1) of the Electoral Act 2010 (as amended) is meant to facilitate the attendance of INEC at the primaries, monitor it in order to perform its functions under Section 86(1) of the Act?
It is important to mention that the attendance of INEC at any primary elections has been made optional by reason of Section 85(2) of the Act which used the word “may”. In the case of EDEWOR v. UWEGBA & ORS (1987) LPELR-1009 (SC) (Pp. 45-46 paras. B-B: on the import of the word “may” the Supreme Court observed per NNAMANI, J.S.C.
“Generally the word ‘may’ always means ‘may’. If has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 SRNSW 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it…”
If the attendance of INEC is not mandatory but voluntary, the performance of its functions encapsulated under Section 86 (which is to keep records of the activities of all registered parties) cannot be tied inextricably to it.
22This is so because there are other avenues or channels through which INEC obtains records. However, I will not ignore the fact that obtaining record might be part of the reasons for mandating parties to notify INEC within 21 days of its primary erections.
This aspect of the Tribunal’s decision creating the impression that the attendance of INEC officials to the primaries could render the failure to give the requisite notice unimportant runs contrary to the wordings of Section 85(1) that “every registered political party shall give the commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees.”
When the words used in a statute are clear, unequivocal and unambiguous, the primary canon of interpretation which is literal rule requires that such words be given their ordinary, simple and natural meaning. See the case of NWAKIRE v. COP (1992) NWLR (PT. 241): In PDP v. INEC (2014) 17 NWLR (PT.1437) 525 AT 558 PARAS C-D where it was held:
“The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the
23 plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole.”
The Supreme Court in the case of DANGANA v. USMAN (2013) 6 NWLR (PT.1349) 50 AT 80 – 81 PARAS H- B cited by the Appellants also had this to say:
“Furthermore, where the words of a statute are clear, unambiguous and unequivocally express the intention of the lawmakers, effect must be given to them irrespective of whether that produces a harsh or inconvenient result.”
A literal interpretation of Section 85(1) means that a political party shall give INEC 21 days notice of its primary elections and there is nothing in the section that dispenses with the required Notice not even the presence of all INEC officials at the primaries who attend without such notice. This is so because of the use of “shall” in the section. In the case of NWANKWO v. YAR’ADUA (2010) 12 NWLR (PT.1209) 513 SC AT Page 589 paras B-C the Supreme Court observed per Adekeye JSC:
“The foregoing is surely a
24 mandatory provision because the operative word there is “shall”. The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation.”
This Court adopted the Supreme Court’s decision in the case of JOHN v. IGBO-ETITI LOCAL GOVERNMENT AREA (2013) 7 NWLR (PT. 1352) 1 CA at page 15 paras A-E where it held per Okoro JCA:
“it is trite that whenever the word “shall” is used in an enactment, it connotes imperativeness and mandatoriness. It leaves no room for discretion at all.”
It is clear from the above cited cases that the word “shall” in the section has made giving 21 days notice to INEC mandatory. Failure to issue this notice renders the primary election so conducted a nullity. See the cases of AMAECHI v. INEC (2008) 1 MJSC 1-25 PAGE 1 AT PAGE 44; HON. AIDOKO ALI USMAN AND ANOR v. OCHEJA EMMANUEL DANGANA & 3 ORS INEC LAW REPORT (2012) VOL. 1 PAGE 523 AT PAGE 541.
Learned Counsel for the Appellants in his brief devoted a great deal
25 of time to the point that failure to comply with Section 85(1) of the Electoral Act renders any primary election organized by a political party a nullity. This fact is not in dispute even by the Respondents. The word used in the provision is ‘shall’ which is mandatory. The issue here is whether the 2nd Respondent did give 21 days notice before the primary election of the 2nd Respondent on 1/12/14 in which the 1st Respondent emerged as the candidate of the party. What happened here is this: The 2nd Respondent wrote a letter dated 19/9/14 (Exhibit E) notifying INEC of the primary election of the party scheduled on various dates. That of the 1st Respondent – State House of Assembly was to be held on 8/11/14. For some reasons it become necessary to reschedule the dates for the elections. Another letter dated 18/11/14 (Exhibit B) was written to INEC rescheduling the date of the primaries. The two letters are reproduced hereunder: Exhibit E which was earlier in time and dated 19/09/2014 reads:
“Dear Sir,
NOTICE OF SPECIAL CONGRESSES FOR THE NOMINATION OF CANDIDATES – 2015 GENERAL ELECTIONS
Please be advised that our Party has scheduled to hold Primary Elections for the
26 nomination of candidates in respect of the 2015 General Elections as follows:
1. State House of Assembly – Saturday, 8th November, 2014 2. Governorship – Saturday, 15th November, 2014
3. House of Representatives (sic) – Monday, 24th November, 2014
4. Senate – Saturday, 29th November, 2014
5. Presidential – Tuesday, 2nd December, 2014
Exhibit B which was later in time and dated 18/11/14 reads:
“Dear Sir,
REVISED DATE FOR THE CONDUCT OF PRIMARIES
Please be advised that our party has rescheduled date for the conduct of Primaries as follows:
1. House of Assembly – 1st December, 2014
2. Governorship – 4th December, 2014
3. House of Representatives (sic) – 7th December, 2014
4. Senate – 8th December, 2014
5. Presidential convention – 10th December, 2014
?The contention of the appellants which was in my view rightly rejected by the Tribunal is that the notice of 19/9/14 was fixed for the 2nd Respondents’ primary for House of Assembly on 8/11/14 and was only for that particular primary; that the rescheduling of the primaries extinguished that notice of 19/9/14; that another fresh notice of 21 days was required to validate the primaries of 1/12/14; that the second letter of 18/11/14
27 for the primaries of 1/12/14 was short of 21 days required by Section 85(1) of the Electoral Act and consequently rendered the primaries a nullity.
It cannot be argued that the letter of 18/11/14 is not related to the letter of 19/9/14. They are indeed very much related. I agree with the Respondents’ Counsel that the position of the law is that where more than one document govern a particular transaction, no single document will be interpreted in isolation. See the cases of UDEAGU v. BENUE CEMENT CO. PLC (supra); ALHAJI M. K. v. FIRST BANK OF NIGERIA PLC (supra); THE ATT. GEN. OF KADUNA STATE v. ATTA (1986) 4 NWLR (PT. 38) 785 C. A cited by learned Counsel. In UDEAGU v. BENUE CEMENT CO. PLC (supra) the court observed:
“It is not the duty of a court, to determine the issues before it on the basis of one document only, when a contract is contained in a series of documents or letters or correspondences. The court is under a duty, to consider the whole of what has passed between and the conduct of the parties.
All these letters are documents which belong to the same ‘transaction’: the primary elections. Therefore they cannot be interpreted independently to convey
28 different information. They have one nexus and ought to be considered together. This the Tribunal rightly did. There is enough evidence to show that the two letters are related and that the Notice in the letter of 19/9/14 covers the primaries held on the 1st of December 2014 and is in full compliance with Section 85(1) Electoral Act being far beyond the 21 days notice required. The first letter of 19/9/14 as shown above said: “Please be advised that our Party has scheduled to hold Primary Elections for the nomination of candidates in respect of the 2015 General Elections as follows:” The second letter of 18/11/14 says: “Please be advised that our Party has rescheduled dates for the conduct of Primaries as follows:” It is the same 2015 General Election that is in issue unless the Appellants are able to confirm that there was another set of elections unconnected with the 2015 elections. The second letter of 18/11/14 is captioned “REVISED DATE FOR THE CONDUCT OF PRIMARIES”. The word “Revised” implies that it is a follow-up from some earlier dates. Further, the words “schedule” and “reschedule” used in the letters supply the necessary link. “Reschedule” again
29 implies a follow-up from a previous schedule. In the American Heritage Dictionary of the English Language Fifth Ed., the word “reschedule” was said to mean “to schedule again or anew” such as to reschedule the meeting for the following week. In Collins English Dictionary – Complete and Unabridged it means “to change the time, date or schedule of”. In Thesaurus it means “to assign a new time and place for an event such as “we had to reschedule the doctor’s appointment”. It is very clear then that the second letter of 18/11/14 merely rescheduled the primaries previously scheduled in the letter of 19/9/14. The contention of the Appellants that the two letters are independent of each other because some of the dates earlier scheduled for some of the primaries had expired before the second letter was written is to my mind of no consequence. The truth remains that none of the primaries for which the first notice was given had been held necessitating the rescheduling. It does not make any sense whatever to require another 21 days notice. That cannot be the intention of the Legislature. Also the contention of the Appellant that the word “any convention, congress,
?30 conference or meeting” in Section 85(1) means that any such convention, congress, conference or meeting whether initially scheduled or rescheduled requires 21 days fresh notice again makes no sense and cannot be the intention of the Legislature. “Any” in the con used means the particular convention, congress, conference or meeting itself and not a rescheduled one which for one reason or the other could not hold. It seems to me from the arguments of learned Counsel for the Appellants that if the second letter of 18/11/14 had referred to the first letter of 19/9/14 and mentioned specifically that the primaries could not hold and is now being rescheduled to hold on the new dates, the notice would be held to date back to the letter of 19/9/14 and would then have satisfied the requirement of Section 85(1). That to my mind would amount to a clear case of placing undue emphasis on technicalities at the expense of substantial justice. In the case of ADEBESIN v. STATE (2014) LPELR-22694 (SC) 25 paras. B-E): the Supreme Court per NGWUTA, J.S.C. observed:
“…this is a minor technical point that has no effect on the judgment of the Court below. At this state in our
31 jurisprudence, technicality must ex necessitate yield place to reality. See Broad Bank Nig. Ltd v. Alhaji S. Olayiwola & Sons Ltd & Anor (2005) All FWLR (Pt.251) 235 at 249-51 SC. Appellant cannot be allowed to latch on abstract technicality to boost his case to the detriment of substantial justice…”
See also CBN v. OKEB NIGERIA LTD & ORS (2014) LPELR-23162 (CA); AFRICAN TIMBER AND PLYWOOD NIGERIA LTD v. DARLING PETROLEUM NIGERIA LTD (2015) LPELR-25585 (CA).
The case of Atai v. Dangana (supra) relied on heavily by the Appellants is not apposite to the instant case. There, 21 days notice was not given before the primaries and the primaries were held in utter disobedience of the warning of INEC that the primaries were being conducted in disobedience of the mandatory 21 days notice required by Section 85(1) of the Electoral Act . The primaries that saw the emergence of the 1st Respondent as the candidate of the 2nd Respondent was in order and not a nullity. The Tribunal was correct in its decision that the Appellants failed to establish that at the time of the House of Assembly election held on 11/4/15, the 1st Respondent was not qualified to contest
32 the election.
This appeal has no merit at all and same is hereby dismissed. The decision of the tribunal is affirmed. I make no order as to costs.
YARGATA BYENCHIT?NIMPAR, J.C.A. : I agree.
JAMILU YAMMAMA TUKUR, J.C.A. : I agree.
Appearances
CHIEF RICHARD OMA?AHONARUOGHO?Esq.,?
with KOLAWOLE?R. RAHEEM?Esq. and ETHARE
OLADIPUPO AHONARUOGHO?Esq. ? ? ? ? F or? Appellant s
R.?A. O.?ADEGOKE ESQ., with DAMILOLA ASUNI ESQ.,
? For? 1st ?a nd 2 nd Respondents
BABS ANIMASHAUN ESQ., For 3rd Respondent
?33
Appearances
CHIEF RICHARD OMA AHONARUOGHO ESQ., with KOLAWOLE R. RAHEEM ESQ. and ETHARE OLADIPUPO AHONARUOGHO ESQ.For Appellant
AND
R. A. O. ADEGOKE ESQ., with DAMILOLA ASUNI ESQ., For 1st and 2nd Respondent
BABS ANIMASHAUN ESQ.
For 3rd RespondentFor Respondent
