PROFESSOR JERRY GANA, CON v. SOCIAL DEMOCRATIC PARTY & ORS(2019)

PROFESSOR JERRY GANA, CON v. SOCIAL DEMOCRATIC PARTY & ORS

(2019) LCN/4896(SC)

In The Supreme Court of Nigeria

On Friday, the 29th day of March, 2019

SC.115/2019

RATIO

OPERATION OF THE PRINCIPLE OF EQUITY

Equity acts in particularly on the conscience of the party against whom it is pleaded who, allegedly, had acted in a manner very iniquitous, unconscionable or immoral by operation of the rule of estoppel. In the words of Nnaemeka-Agu, JSC in UDE v. NWARA (supra) at page 662, a man is not allowed to blow hot and cold, to affirm at one time and to deny at the other, or, as it is said, to approbate and reprobate. PER EJEMBI EKO, J.S.C.

WHAT AN APPELLANT MUST SHOW THAT WILL WARRANT THE APPELLATE COURT TO INTERVENE AND DISTURB THE DECISION APPEALED AGAINST

WHETHER A COURT CAN ADOPT THE WISHFUL THINKING OF A LITIGANT IN ITS INTERPRETATIVE JURISDICTION

It is not one of the canons of interpretation for the Court to merely adopt the wishful thinking of a litigant in its interpretative jurisdiction. Lord Goddard, CJ in BARNES v. JARRIS (1953) 1 WLR 649 at 652, had advocated that the Court, in construing a statute or document, must apply certain amount of common sense. See also NIGERIA-ARAB BANK LTD v. COMEX (1999) 6 NWLR (pt. 608) 648 at 669 per Oguntade, JCA (as he then was) PER EJEMBI EKO, J.S.C.

WHETHER A COURT OF LAW CAN INTERFERE WITH A POLITICAL PARTY’S NOMINATION OF CANDIDATES FOR POLITICAL OFFICE

It has been held severally by this Court that the choice of a candidate for political office is the internal affair of a political party and the Courts do not interfere in such exercise, except within the narrow confines of Section 87 (9) of the Electoral Act, 2006, as amended, which provides that an aspirant who complains that any of the provisions of the Electoral Act or the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may seek redress in the Federal High Court, the High Court of a State or of the FCT. The rationale for non-interference in the choice of a candidate by a political party was explained by this Court in: Onuoha Vs Okafor (1983) 2 SCNLR 244 @ 265, where it was held inter alia: “The matter in controversy in the appeal is whether a Court has the jurisdiction to entertain a claim whereby it can compel a political party to sponsor one candidate in preference for another candidate of the self-same political party. If a Court could do this, it would in effect be managing the political party for the members thereof. The issue of who should be a candidate of a given political party at any election is clearly a political one, to be determined by the rules and constitution of the said party. It Is thus a domestic issue and not such as would be justiciable in a Court of law.” The general principle of non-interference has remained but subject to the limited circumstances provided in Section 87 (9) of the Electoral Act, as amended. See: Gwede Vs INEC (2014) 18 NWLR (Pt. 1438) 56; Emenike Vs P.D.P. (2012) 12 NWLR (Pt. 1315) 556 @ 590; Ehinlanwo Vs Oke (2008) 16 NWLR (Pt. 113) 357 @ 405; Olofu Vs Itodo (2010) 18 NWLR (Pt. 1225) 545. The purport of all these authorities is that, so long as political parties adhere to the provisions of their constitutions in the choice of candidates for political office, the Courts will not interfere. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

WHAT THE LITERAL RULE OF STATUTORY INTERPRETATION ENTAILS

The literal rule of statutory interpretation is that words must be given their plain and ordinary meaning unless to do so would lead to absurdity or injustice. See: Ogbunyiya Vs Okudo (1979) 6 9 SC 32; Abegunde Vs Ondo State House of Assembly (2015) 8 NWLR (Pt. 1461) 314 @ 357 A D; Ahmed Vs Kassim (1958) 3 FSC 51; Olanrewaju Vs Governor of Oyo State (1992) 11 12 SCNJ 92. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

JUSTICES

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

AMIRU SANUSI Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria

UWANI MUSA ABBA AJI Justice of The Supreme Court of Nigeria

Between

PROFESSOR JERRY GANA, CON Appellant(s)

AND

SOCIAL DEMOCRATIC PARTY (SDP)
2. CHIEF OLU FALAE, GCON, CFR
(THE NATIONAL CHAIRMAN, (SDP)
3. ALHAJI SHEHU MUSA GABAM
(NATIONAL SECRETARY, SDP)
4. PROFESSOR TUNDE ADENIRAN, OFR
(CHAIRMAN, SDP PRRESIDENTIAL SCREENING PANEL/DEPUTY NATIONAL CHAIRMAN, SOUTH)
5. DONALD DUKE
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): By his Amended Originating Summons at the High Court of the Federal Capital Territory (FCT), Prof. Jerry Gana, CON (hereinafter called “the Appellant”), had raised the following questions and sought 13 reliefs, to wit:
QUESTIONS FOR WHICH DETERMINATION IS SOUGHT
1. Whether having regard to Section 87(9) of the Electoral Act, 2010 (as amended) and Article 2 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended), the 1st Defendant is bound by the provisions of Article 15.3(i) & (ii)(a) of its own Constitution, to wit, relation to the principle of rotation of political offices such that the office of the President and National Chairman of the 1st Defendant shall rotate between the South and North and amongst the six (6) geopolitical zones.
2. Whether having regard to Section 223(1)(a) and (b) and 2(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended) and given the fact that the National Chairman of the 1st

Defendant, the person of the 2nd Defendant is from the South, the office of the President of the Federal Republic of Nigeria for the 2019 Presidential election is not deemed zoned to the North to the exclusion of the South.
3. Whether having regard to the Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 87(9) of the Electoral Act, 2010 (as amended) and Article 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended) which entrenches the principle of zoning and rotation of political offices such that the office of the President and National Chairman of the 1st Defendant shall rotate between the South and North and bearing in mind the fact that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the 5th Defendant was not automatically disqualified from participating in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and from being fielded as the Presidential candidates of the 1st Defendant for the 2019 Presidential election.
4. Whether the participation of the 5th Defendant who

is from Southern Nigeria, the same zone with the 2nd Defendant in the Presidential Primaries of the 1st Defendant conducted on 6th October, 2018 on his purported return as the Presidential flag bearer or candidate of the 1st Defendant in the 2019 Presidential election is not a gross violation of Article 15.3(i) & (ii)(a) of the Constitution of the Social Democratic Party, 2018 (as amended).
5. If the answers to issues 1, 2, 3 and 4 above are in the affirmative whether the purported participation of the 5th Defendant in the Presidential Primaries of the 1st Defendant on 6th October, 2018 ought not to be deemed as null and void and of no effect and the purported votes of 812 votes ascribed to him and/or allegedly scored by the 5th Defendant in the said Presidential Primaries are not deemed wasted votes.
6. If the answers to issues 1, 2, 3, 4 and 5 above are in the affirmative, whether the Claimant, a Presidential aspirant from the North who participated in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and who scored 611 votes ought not to be declared as the candidate with majority of lawful votes cast at the said Presidential

Primaries and as such the name of the Claimant ought to be forwarded and/or ought to have been forwarded to the 6th Defendant by the 1st Defendant as its Presidential candidate for the 2019 Presidential election.
ALTERNATIVELY
7. Whether by the combined effect of Section 87(1), (2), (7) and (9) of the Electoral Act, 2010 (as amended) and Articles 2, 15.1, 15.2 (1), 15.4(i) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP) (as amended), the 1st Defendant is duty bound to issue Guidelines for the conduct of its Presidential Primaries and whether the failure of the 1st Defendant to issue such Guidelines for its Presidential Primaries conducted on 6th October, 2018 rendered the said Presidential Primaries null and void and of no effect whatsoever.
STATEMENT OF RELIEFS SOUGHT
1. A DECLARATION that the 1st Defendant and by extension, all its members are bound by the provisions of Articles 2 and 15.3(i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) in relation to the principle of rotation of political offices to the effect that the office of the Presidential and National Chairman of the

1st Defendant shall rotate between the South and North and amongst the six(6) geo-political zones in Nigeria.
2. A DECLARATION that by reason of Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3 (i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) and given the fact that the National Chairman of the 1st Defendant, that is to say, the 2nd Defendant is from the South, the office of President of the Federal Republic of Nigeria for 2019 Presidential Election from the perspective of the 1st Defendant is deemed to have been zoned to the North to the exclusion of the South.
3. A DECLARATION that by virtue of Section 223(1)(a) and (b) and (2)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Articles 2 and 15.3(i)(ii)(a) of the Constitution of the Social Democratic Party (SDP), 2018 (as amended) which entrenches the principle of zoning and rotation of Political Offices to the effect that the President and National Chairman of the 1st Defendant shall rotate between the South and North, the 5th

Defendant was disqualified or stood disqualified from participating in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and from being fielded as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election more so that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the same zone with the 5th Defendant.
4. A DECLARATION that the participation of the 5th Defendant who is from Southern Nigeria in the Presidential Primaries of the 1st Defendant conducted on 6th October, 2018 and his purported return as Presidential Candidate of the 1st Defendant in the 2019 Presidential Election is a gross violation of Articles 2 and 15.3(i)(ii)(a) of the Constitution of Social Democratic Party (SDP), 2018 (as amended) more so that the 2nd Defendant, the National Chairman of the 1st Defendant is from the South, the same zone with the 5th Defendant.
5. A DECLARATION that the participation of the 5th Defendant in the Presidential Primaries of the 1st Defendant on 6th October, 2018 and the purported votes of 812 votes allegedly scored by the 5th Defendant in the said Presidential Primaries are null

and void and of no effect and as such the 812 votes ascribed to the 5th Defendant thereof are deemed wasted votes.
6. A DECLARATION that the Claimant, a Presidential aspirant from the North who participated in the Presidential Primaries of the Defendant on 6th October, 2018 and who scored 611 votes ought to be declared as the candidate with majority of lawful votes cast at the said Presidential Primaries.
7. A MANDATORY ORDER compelling the 1st, 2nd, 3rd and 4th Defendants to substitute the name of the 5th Defendant already forwarded to the 6th Defendant with the name of the Claimant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election.
8. A MANDATORY ORDER compelling the Defendant to accept the name of the Claimant as the Presidential Candidate of the 1st Defendant of the 2019 Presidential Election and/or substitute the name of the 5th Defendant with the name of the Claimant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election.
9. A PERPETUAL INJUNCTION restraining the 5th Defendant from parading himself as the Presidential Candidate of the 1st Defendant in the 2019

Presidential Election with respect to the office of the President of the Federal Republic of Nigeria.
10. A PERPETUAL INJUNCTION restraining the 1st, 2nd, 3rd and 4th Defendants from holding out, supporting, sponsoring and/or campaigning for the 5th Defendant as the Presidential Candidate of the 1st Defendant for the 2019 Presidential Election with respect to the office of the President of the Federal Republic of Nigeria.
ALTERNATIVELY
11. A DECLARATION that by the combined effect of Section 87(1), (2), (7) and (9) of the Electoral Act, 2010 (as amended) and Articles 2, 15.1, 15.2(1), 15.5(1) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended), the 1st Defendant is duty-bound to issue Guidelines for the conduct of its Presidential Primaries and as such the failure of the 1st Defendant to issue such Guidelines for its Presidential Primaries conducted on 6th October, 2018 rendered the said Presidential Primaries null and void and of no effect whatsoever.
12. AN ORDER setting aside and/or nullifying the Presidential Primaries conducted by the 1st Defendant on 6th October, 2018 as completely null and void and of no effect for want of compliances with Articles 15.1, 15.2(i), 15.4(i) and (ii) and 15.5 of the Constitution of the Social Democratic Party (SDP), 2018 (as amended)
13. ANY FURTHER CONSEQUENTIAL Relief(s) as the Honourable Court may deem just and expedient in the circumstances.

The Amended Originating Summons was supported by an affidavit to which several documents were exhibited. The 1st – 5th Respondents, as Defendants, filed Counter-Affidavit and joined issues with the Appellant. In response the Appellant filed a Further and Better Affidavit.

The Appellant, in paragraphs 24 and 25 of the Supporting Affidavit, had averred that the 1st Respondent, the Social Democratic Party (SDP), did not issue Guidelines for the conduct of the Presidential Primary Election that took place on 6th October, 2018. The 1st – 5th Respondents not only categorically deny this fact, in paragraph 15 of the Counter- Affidavit, they produced, as Exhibit SDP2, Guidelines of Social Democratic Party (SDP) – Presidential Primary 2018. The Further and Better Affidavit was completely silent on this. Thus, as facts not disputed are taken as established; the alleged failure of the 1st Respondent to issue Guidelines for the Presidential Primary election ceases to be an issue. Exhibit SDP2 was the Guidelines Social Democratic Party (SDP) – Presidential Primary 2018.

Having read the briefs or argument exchanged by the Appellant and the 1st -5th Respondents, it

appears to me that the broad issues on which this appeal spins are –
i. Whether the 1st Respondent, for the purposes of the Presidential Primary election it conducted on 6th October, 2018, was bound by its Amended Constitution Exhibit 1
ii. What is the correct interpretation of Article 15.3(i) & (ii)(a) of the SDP Constitution (as amended in 2018), Exhibit 1; and
iii. Whether Article 15.3(ii)(a) of Exhibit 1 is inconsistent with Sections 42, 131 and 137 of the Constitution of the Federal Republic of Nigeria 1999 as amended

The Parties, particularly the 1st – 5th Respondents and the Appellant, are ad idem that the SDP (1st Respondent) at its National Convention on 6th October, 2018, having ratified and adopted the amended Constitution, Exhibit 1, now has a new or amended Constitution that has replaced its 2011/2012 Constitution, Exhibit J. All that is needed, by virtue of Article 25.1 of Exhibit J, is the vote of “a minimum of two-thirds of financial members of the party present and voting at the National Convention, provided that notice of such amendment shall have been filed with the National Secretary not less than 30 days before the

date of the National Convention and circulated not less than 14 days before the date of the convention”. The procedure by which Exhibit I was produced is not in dispute. All concerned are in agreement, apparently, that on 6th October, 2018 the National Convention of the SDP ratified and adopted Exhibit I as the amended Constitution of the SDP.

Section 222 (d) of the Constitution of the Federal Republic of Nigerian (CFRN), 1999, as amended, enjoins any political party or association that has altered its registered Constitution to register same “in the principal office of the Independent National Electoral Commission within thirty days of its making of such alteration”. This requirement is clearly not a precondition for the Constitution, as altered, to become effective or operational. The lower Court, in my firm view, was in error when it held at page 994 of the Record that after the National Convention had ratified and adopted Exhibit 1 on 6th October, 2018, the said Constitution, as amended –
did not become operative on the same 6/10/2018 when it was ratified but on 8/10/2018 when it was sent to the (Independent National Electoral

Commission (INEC) for further necessary action. So, the 2011/2012 Constitution (Exhibit J) continued to govern the conduct of the affairs of the (SDP, & 1st Respondent) up to the 8/10/2018. The holding of the trial Court that the amended Constitution became operational immediately upon its ratification and adoption is wrong.
The clear and unambiguous provisions of either Section 222 (d) of the CFRN, 1999 as amended, or Article 25.1 of Exhibit J do not admit or provide the basis for this holding of the lower Court. It is therefore the lower Court, not the trial Court, that erred in this regard.
The cardinal principle of Interpretation is that when the words of the statute or instrument are clear and unambiguous they must be given their ordinary natural simple meaning. A Court of law, in its interpretative jurisdiction, lacks jurisdiction to import or impute into a statutory provision words which are not therein used. Its duty being only to interpret the provisions in order to bring out the meaning of the words used in the statute and the intent of the law maker: UNIPETROL v. E.S.B.I.R (2006) ALL FWLR (pt. 317) 413 at 423; OBUSEZ v. OBUSEZ (2007) 30 NSCQR 329.

There is nothing whatsoever to suggest that the National Convention of the SDP (1st Respondent) did not intend that its amended Constitution, Exhibit I, should not take immediate effect or commencement from the date the amended Constitution, Exhibit I, was ratified and adopted on 6th October, 2018. Amendment being a formal revision or addition to a statute or instrument, takes immediate effect unless the contrary is expressly stated. An amendment, whenever it is made to a document, dates or relates back to the original date of the document so amended: ROTIMI v. MACGREGOR (1974) II SC 133; THE NIGERIAN AIR FORCE v. JAMES (2002) 18 NWLR (pt. 798) 295; (2002) 12 SCNJ 379; FRN v. ADEWUNMI (2007) 10 NWLR (pt. 1042) 399. However, all actions taken previously before the amendment still remain valid.
By way of analogy: it is provided in Section 2 (2) of the Interpretation Act that where no other provision is made as to when a particular enactment is to come into force, it shall come into force when the Act is passed or on the day when the enactment is made. Section 4 (2) (a) of the Interpretation Act provides further

that where an enactment is repealed and another enactment is substituted for it, then the repealed enactment shall remain in force until the substituted enactment comes into force.
The Counsel, respectively for the Appellant and 1st – 5th Respondents, belaboured the issue as to the effect the amended Constitution, Exhibit I, had on things done or actions taken under Exhibit J, before Exhibit I became effective or operational. In AFOLABI v. GOVERNOR, OYO STATE (1985) 2 NWLR (pt. 9) 734 at page 752 it was held per Aniagolu, JSC, that “a statute does not retrospectively abrogate vested rights”. On this, Mr. Edoigiawerie, of Counsel to the 1st – 5th Respondents, submits that the trial Court was wrong in interpreting Article 15.3 (ii)(a) of Exhibit I to the effect that the provision disqualified the 5th Respondent. I agree. The transitional provision of Exhibit I, in Article 24.9 thereof, providing that “all documents of the Party existing prior to the adoption of this amended Constitution (2018) shall remain valid” appears, in my view, to give force to the presumption that vested rights prior the adoption of Exhibit I remain valid and extant.

Exhibit I, is the subsisting and extant Constitution of the SDP (1st Respondent). In absence of any contrary provision, the commencement date of Exhibit I was the said 6th October 2018 when it was ratified and adopted.

It does appear from the brief of argument of the 1st – 5th Respondents that they dispute the contention of the Appellant, premised on ONUOHA v. OKAFOR (1983) 2 SCNLR 244; PDP v. SYLVA (2012) 13 NWLR (pt. 1316) 85 (SC) at 154; LAU v. PDP (2018) 4 NWLR (pt. 1608) 60 (SC) at 123; APC v. KARFI (2018) 6 NWLR (pt. 1616) 479 (SC) at 526, that a political party, like any other organisation, is bound by its Constitution. In all the foregoing cases, this Court took a firm position that a political party is bound by its own Constitution. All members of the political party are also bound by the provisions of the Constitution of the political party they belong. Obaseki, JSC in ONUOHA v. OKAFOR (supra) had put it forcefully thus –
The party like any other corporation, operates within the guidelines, the powers and duties set out in its Constitution. All its members are bound by its provisions and their rights and

obligations created by their Constitution can be remedied as provided by the Constitution if breached by any of its members –
Accordingly, the rights and obligations of the members of the SDP (1st Respondent), including the Appellant and the 5th Respondent, are defined by their party Constitution. They, both the party and its members, “are bound by its provisions and their rights and obligations created by their Constitution can be remedied as provided by the Constitution, if breached” either by the party or any of the members of the party.

The Lower Court found that the Appellant, as the claimant at the trial Court, had brought this suit to enforce against the 1st 5th Respondents his right under Exhibit I the 2018 Amended Constitution of the SDP/1st Respondent. He premised his case on Article 15.3 (II)(a) of Exhibit I, claiming that by his party, 1st Respondent, not invoking its Constitution to disqualify the 5th Respondent as an aspirant who won the Presidential Primary election he had been prejudiced. He never, in first place, raised this issue either before or at the Presidential Primary Election convention. He

is only now raising it after losing the election to the 5th Respondent.

The Appellant, from the affidavit in support of the Amended Originating Summons, particularly paragraph 39 thereof, expected the 1st Respondent, in furtherance of the SDP principle of Zoning and Rotation, to have Zoned the slot for the Presidential Candidate of the party (SDP) to the North since Chief Olu Falae (2nd Respondent) as from the South. He averred, on this premise, that the 5th Respondent, an indigene of Cross-River State in the South of Nigeria, was not qualified to contest the Presidential Primaries conducted on 6th October, 2018. On the footing of this assertion, in paragraph 39 of his supporting affidavit, the Appellant reasoned in paragraph 40 of the same supporting affidavit
That in the light of paragraph 39(b) above, I was deemed (supposedly) to have secured the highest valid votes cast at the said primaries and ought to have been returned as the duly nominated Presidential Candidate of the 1st (Respondent) for the office of the President of the Federal Republic of Nigeria.

He further averred, wishfully, that his “name ought to have been forwarded to the 6th

(Respondent, INEC) by the 1st (Respondent) as its Presidential Candidate for the Presidential Election.”

There is no evidence on the Record that the National Working Committee (NWC) or the National Executive Committee (NEC) of the SDP (1st Respondent) had formally Zoned the Presidential Candidate of the party to the North or to the South, in furtherance of its zoning principle in Article 15.3(ll)(a) of Exhibit l. The Appellant’s grouse, apparently, is that the party allowed aspirants, including the 5th Respondent, from the South to contest freely with other aspirants (including himself) from the North. There is also no evidence that the Appellant, by way of a preliminary objection, protested the free-for-all contest, between the aspirants from the South and the North, before the Presidential Primary election was conducted on 6th October, 2018. He seemed to have, himself, acquiesced in it. To underscore this acquiescence, it is averred in the counter-affidavit, paragraph 17 thereof, of 1st 5th Respondents that the Appellant “participated in the primary election conducted by the 1st (Respondent) without protest or objection made to

(Respondents) during the screening exercise and the elective convention” of the 1st (Respondent). Exhibit SDP 5, Appellant’s Expression of Interest Form, wherein in Part D thereof, the Appellant signed an undertaking “to support whoever emerges as the winner of the position we are contesting for” was exhibited to the counter-affidavit. I have not seen any renunciation by the Appellant of the undertaking in Exhibit SDP 5 or a plea of non est factum, anywhere, in respect of that undertaking coming from the Appellant.
On the undertaking by the Appellant in Exhibit SDP 5, the 1st – 5th Respondents, in their joint Brief of Argument, submit on the authority of IGA v. AMAKIRI (1976) 11 SC 1 at 12 13; ODUA INVESTMENT v. TALABI (1997) 10 NWLR (pt. 523) 1 at 51; ARIORI v. ELEMO (1983) 1 SC 1; ADEDEJI v. NATIONAL BANK (1989) 1 NWLR (at. 96) 212 at 226; UDE v. NWARA (1993) 2 NWLR (pt. 278) 638 at 662; MABAMIJE v. OTTO (2016) 65.2 NSCQR 852 at 877; that it is unconscionable for a party who has benefited from an agreement to turn around to renege on his own undertaking, and the Appellant’s undertaking in Exhibit SDP 5 amounted to waiver of a legal right

beneficial to him, and estoppel by conduct. It is doubtful if the Appellant, without the undertaking, would have been placed on the ballot as an aspirant. P. A. Akubo, SAN of senior Counsel for the Appellant, in the Reply Brief did not directly join issues on this. His response in paragraph 4.06 of the Reply Brief, evasively, is that the case of UDE v. NWARA (supra), as regards estoppel by conduct, “binds the 1st 5th Respondents hands and get feet with respect to the implementation of the Amended Constitution of the 1st Respondent before its final ratification on 6th October, 2018”.
I am in complete agreement with the 1st 5th Respondents that the Appellant’s undertaking in Exhibit SDP 5 is adverse to the case of the Appellant. The undertaking clearly makes it not right or unconscionable for the Appellant to litigate on the very cause of action he had elected, expressly, not to exercise his right of action to litigate, and had in fact emphatically represented to the electors and the other aspirants that he would “support whoever emerges as the winner of the position we are contesting for”. Equity acts in

particularly on the conscience of the party against whom it is pleaded who, allegedly, had acted in a manner very iniquitous, unconscionable or immoral by operation of the rule of estoppel. In the words of Nnaemeka-Agu, JSC in UDE v. NWARA (supra) at page 662, a man is not allowed to blow hot and cold, to affirm at one time and to deny at the other, or, as it is said, to approbate and reprobate. Accordingly, on this principle and in view of his undertaking in Exhibit SDP5 the Appellant, a man of honour, is not allowed to mislead the 1st 5th Respondents into believing that he would support the winner of the contest between himself, on one hand, and the 5th Respondent and others, on the other hand, and later turn around to litigate against them, particularly the 5th Respondent who emerged as the winner of the contest.
It is clear to me, and I so hold, that the Appellant can waive the right to dispute and litigate on the outcome of the Presidential Primary election he took part in on 6th October, 2018 since the right is personal and beneficial to him as an aspirant: ARIORI v. ELEMO (SUPRA). The principle of estoppel by conduct, which has been

codified into Section 169 of the Evidence Act, 2011, estops him from approbating and reprobating on his undertaking in Exhibit SDP5 to support whoever emerged from the contest he had with the 5th Respondent and others on 6th October, 2018. That undertaking obligated him as a man of honour, conscience and principle to support the 5th Respondent who emerged as the winner from the contest.
The Appellant had, under his issue 3, complained that the Lower Court raised the issue of waiver and estoppel by conduct viz a viz the Appellant’s undertaking in Exhibit SDP5 suo motu and decided the appeal on it without giving him an opportunity to be heard on it. The charge is false. The 1st 5th Respondents, as appellants at the Lower Court raised the issue in their ground 8 of the grounds of appeal. It was argued under issue 4 in paragraphs 7.22,7.23, 7.24 and 7.25 of their Appellants’ Brief, particularly at pages 878 and 879 of the Record. This complaint, being frivolous and reckless shall be and is hereby dismissed.
On this estoppel by conduct alone the Appellant’s action at the trial Court was frivolous,

vexatious and an abuse of process for which, resultantly, the suit ought to have been dismissed. The Lower Court was in error when it dismissed the issue and failed to allow the appeal on it.

Five aspirants, including the Appellant and the 5th Respondent, contested on 6th October, 2018 to be nominated as the SDP’s Presidential Candidate. At the end of the exercise the scores for the aspirants, indubitably, are as follows
i. Donal Duke (5th Respondent)   – 812 votes
ii. Prof. Jerry Gana (Appellant)   – 611 votes
iii. John Dara   – 104 votes
iv. Prof (Amb.) lyorwuese Hagher – 72 votes
v. Amb. Felix Osakwe -10 votes

Based on this result, the 5th Respondent was declared the winner of the contest. The complaint of the Appellant, expressed as his cause of action for this action, is that since the 2nd Respondent (Chief Olu Falae), the National Chairman of the SDP, is from the South and the 5th Respondent is also from the South; by operation of the principle of Zoning and Rotation in Article 15.3 (II)(a) of the Amended SDP Constitution 2018 Exhibit I, the 5th

Respondent stands disqualified, as an aspirant to be the Presidential Candidate of the SDP (1st Respondent). The Lower Court, upon its dispassionate view of the said 2018 Amended Constitution of the SDP (Exhibit I), particularly Article 15.3 (II)(a) thereof, had held at pages 999 100 and 1011 1012 of the Record (per Abdu Aboki, JCA), thus
I have calmly and carefully read the 2018 amended Constitution (Exhibit I), I have not seen any provision therein that expressly states that a member of the party from any part of the country shall not aspire to be nominated as the party’s Presidential candidate in a general election if the holder of the office of the National Chairman of the party, at the material time, is from his part of the country.
There is nothing in Article 15.3 (II)(a) or any part of Exhibit I that suggests so. It is obvious from the clear wordings at that provision that it merely lists the offices that shall rotate between the South and North and amongst the six Geopolitical Zones. The clear intendment is to avoid one Zone holding such offices permanently to the exclusion of other Zones. The provision (of

Article 15.3 (II)(a)] did not state or suggest that if a person from one part of the country is already holding the office of the National Chairman of the party, no person from that part can be the Presidential candidate of the party in an election.

At pages 1011 1012 of the Record the Lower Court further proffered or found the ulterior intent or purpose of Article 15.3 (II)(a) of Exhibit I, to be purely political, thus
The case of the (Appellant herein) is that the 1st (Respondent SDP) has provided in Article 15.3 (II)(a) of its 2018 amended Constitution that a person cannot participate in the Presidential Primary election of the party or be its Presidential Candidate if the current National Chairman is from his part of the country. I have already held that Article 15.3 (II)(a) do (sic) not state or suggest such an arrangement. Even if such an arrangement is assured to be provided in that Constitution, it amounts to a mere internal political arrangement of a political party to help it win elections, that has nothing to do with the personal

qualification of any member of the party to aspire to be its candidate in an election or the qualification of such a person for election to the office of President. Such an arrangement has nothing to do with the due process of the primary election.

The Appellant is not complaining about the due process of the primary election. Rather, he applauds it and posits that upon the disqualification of the 5th Respondent he, as the aspirant with the highest number of votes, should be deemed as the aspirant duly elected as the Presidential candidate of the SDP, 1st Respondent.

I had earlier in this judgment held that the 1st Respondent, the SDP, is bound by its 2018 amended Constitution, Exhibit I. The Appellant, according to his learned senior Counsel, had sought the Court to determine if Article 15.3 (II)(a) of Exhibit I, in relation to the principle of Zoning and Rotation, was not binding on the party, the 1st Respondent. My answer is in the affirmative. However, agreeing with the Lower Court that the Principle of Zoning and Rotation in Article 15.3 (II)(a) of Exhibit I, is “a mere internal political arrangement of a political party to

help it win elections;” I add: consistent with the dictum of this Court in ONUOHA v. OKAFOR, (supra), that in respect of party’s political stratagem of winning elections the Courts absolutely lack jurisdiction to dabble in and/or enforce such political project.

The issue now is not whether the 2018 Amended Constitution of the SDP, Exhibit 1, and its constituent provisions, including Article 15.3(II)(a) are not binding on the SDP as a party. The issue now, rather, is one of the correct construction or interpretation to give to Article 15.3 (II)(a) of Exhibit I, that provides
Article 15.
15.3
i. The Party shall adhere to the Principle of Zoning and Rotation of Political Officers based on the principles of inclusiveness, justice, equity and fairness to all
ii. The Party shall therefore observe the following
(a) the office of the President and National Chairman of the party shall rotate between the South and North and amongst the Six (6) geopolitical Zones.

Article 15.3 (11) (a) of Exhibit I is couched in very clear and unambiguous terms. One of the cardinal principles of interpretation is that

which restrains the Court from reading into the provisions words which are not found therein: EFFIONG v. HENSHAW (1972) 7 NSCC 329; SUNMONU v. OLADOKUN (1996) 8 NWLR (pt. 467)387; TUKUR v. GOVERNOR, GONGOLA STATE (1988) 1 NWLR (pt. 68) 39. This principle of construction or interpretation is completely an antithetic of the construction or interpretation the Appellant is imputing to Article 15.3 (II)(a) of Exhibit I and urging on us to uphold. I had reproduced in extenso passages in the judgment of the Lower Court, which in my humble view, represent the correct interpretation of Article 15.3 (II)(a) of Exhibit I.

The first duty of the Appellant is to show in what respects the Court below had erred, either in law or on facts, in its judgment on appeal to warrant the appellate Court to intervene and disturb the decision appealed. The Appellant, through his senior Counsel, has not been able to discharge this basic onus on him to establish that the Lower Court, from the portions of its judgment I had earlier reproduced, erred in its interpretation of Article 15.3 (II)(a) of Exhibit I.

The Appellant brought the suit on the Amended Originating Summons majorly for the trial Court to declare that, by the 1st Respondent’s principle zoning and Rotation contained in Article 15.3 of the Amended SDP Constitution (2018), Exhibit I, the 5th Respondent should not be a Presidential Candidate of the 1st Respondent since the 2nd Respondent is the extant National Chairman of the Party and both, the 2nd and 5th Respondents, are from the South of the Country. The suit raises no issue of disqualification under the CFRN,

particularly Sections 131 & 137 thereof as the lower Court rightly observed.

The lower Court having held, on the main substance of the Amended Originating Summons, that Article 15.3 (ii)(a) of Exhibit I was “a mere Internal Political arrangement of the Political Party to help it win elections, and that has nothing to do to with the personal qualification of any member of the party to aspire to be its candidate in an election or the qualification of such a person for election to the office of President”, should have avoided its earlier opinion, appearing to have a semblance of obiter dictum, that the Appellant’s reliefs “would violate the 5th (Respondent’s) fundamental right to freedom from discrimination guaranteed by Section 42(1)(a), (2) of the 1999 Constitution”. On this unwarranted excursion the lower Court then erroneously opined:
“so the reliefs claimed in the suit – are unconstitutional, illegal and unenforceable”.

While this opinion was expressed in error and was completely uncalled for, considering the narrow confines of the suit; it does no structural damage to my view of the Appellant’s suit being in substance very frivolous and vexatious.

The totality of all I have been labouring to say is that this appeal, like the Amended Originating Summons, is a frivolous and vexatious exercise of the Appellant’s right of access to the Court seeking to redress a right he had earlier undertaken not to pursue. The appeal therefore shall be, and is hereby, dismissed in its entirety. The Appellant shall pay as costs the sum of N3,000,000.00 to the 1st – 5th Respondents.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: The appellant, Prof. Jerry Gana participated in the presidential primaries of 1st respondent, the Social Democratic Party, conducted on 6/10/18 along with four other contestants.

At the conclusion of the exercise, the 5th respondent was declared the winner with 812 votes. The appellant came second with 611 votes. The name of the 5th respondent was duly forwarded to INEC as the party’s Presidential candidate for the 2019 Presidential Election.

Dissatisfied with the outcome of the election, the appellant petitioned the Respondent’s Presidential Primary Appeal Panel contending that there was a breach of Article 15.3

(i) and (ii) of the 1st Respondent’s Constitution (Exhibit I), which was ratified on 6/10/18.
Article 15.3 of the said Constitution provides:
“15.3
(i) The party shall adhere to the principle of Zoning and Rotation of Political Offices based on the principles of inclusiveness, equity and fairness to all.
(ii) The party therefore shall observe the following:
(a) The office of the President and National Chairman of the Party shall rotate between the South and North amongst the six (6) geopolitical zones.”

It was the appellant’s contention that since the National Chairman of the Party, Chief Olu Falae, hails from Ondo State in Southern Nigeria, the 5th Respondent, who hails from Cross River State, also in the Southern part of the country, was not eligible to contest the said primaries and that he who hails from the Northern part of the country should be declared the winner of the primaries. He also petitioned the 2nd respondent. He instituted the suit before the trial Court when he did not receive any response to his petitions. He sought various reliefs from the trial Court (fully set out in the lead judgment)

including a declaration that he be declared as the candidate with majority of lawful votes cast at the said presidential primaries, on the ground that any votes cast for the 5th respondent in violation of the party’s zoning policy, are wasted votes.

It is worthy of note that all the candidates who participated in the presidential primaries were required to give a written undertaking to support whoever emerged as the winner of the position being contested. The appellant duly gave the said undertaking vide Exhibit SDP5. Also relevant is the fact that two other contestants, apart from the 5th respondent are also from the Southern part of the country, yet the appellant only challenged the eligibility of the 5th respondent to contest.

The learned trial Judge of the High Court of the Federal Capital Territory granted all the appellant’s reliefs.
On appeal to the lower Court by the respondents, the decision of the trial Court was set aside and the 5th respondent was declared as the duly nominated candidate of the 1st respondent.
The appellant is dissatisfied and has further appealed to this court.

My learned brother, Ejembi Eko, JSC obliged

me a draft of the judgment just delivered. The views expressed therein reflect my position in this appeal. I shall make a few brief remarks in support.

self-same political party. If a Court could do this, it would in effect be managing the political party for the members thereof. The issue of who should be a candidate of a given political party at any election is clearly a political one, to be determined by the rules and constitution of the said party. It Is thus a domestic issue and not such as would be justiciable in a Court of law.”
The general principle of non-interference has remained but subject to the limited circumstances provided in Section 87 (9) of the Electoral Act, as amended. See: Gwede Vs INEC (2014) 18 NWLR (Pt. 1438) 56; Emenike Vs P.D.P. (2012) 12 NWLR (Pt. 1315) 556 @ 590; Ehinlanwo Vs Oke (2008) 16 NWLR (Pt. 113) 357 @ 405; Olofu Vs Itodo (2010) 18 NWLR (Pt. 1225) 545. The purport of all these authorities is that, so long as political parties adhere to the provisions of their constitutions in the choice of candidates for political office, the Courts will not interfere.

The pertinent issue in this appeal is whether, in the selection of the 5th respondent as its presidential candidate, the 1st respondent failed to adhere to the provisions of its Constitution vis-a-vis its zoning formula.

The appellant’s interpretation of Article 15.3 (i) (a) of the 1st respondent’s Constitution is that where the National Chairman of the party is from the Southern part of the country, the Presidential candidate of the party cannot be from the same zone and therefore the 5th respondent in the circumstances of this case was ineligible to contest. I agree with the lower Court and my learned brother, Ejembi Eko, JSC, that the clear and unambiguous words used in the said provision do not lend themselves to the interpretation given by the appellant.

Firstly, at the stage of conducting primaries to select a presidential candidate, it is obvious that there is as yet no president, as the General Election

is yet to take place. There is no reference to presidential candidate in Article 15.3 (i) (a). Furthermore, I agree with the reasoning of the Court below at page 1000 1001, to wit:
“The trial Court has interpreted and applied Article 15.3(10(a) of the same exhibit I as taking away this right of equal opportunity to be voted for in a presidential primary election of the party where the exercise of that right would result in the presidential candidate of the party coming from the same part of the country as the current holder of the office of National Chairman of the Party. The trial Court has interpreted it as stating that the offices of National Chairman of the Party and the Presidential candidate of the party for an election cannot be held at the same time by persons from the same part of the country and that since the present National Chairman of the Party is from the Southern part of the country, no party member from the Southern part of the country can aspire to be the Presidential Candidate of the Party for the next elections. There is nothing in Article 15.3(10(a) or any part of exhibit I that state or even suggest so.

It is obvious from the clear wordings of that provisions that it merely lists the offices that shall rotate between the South and North and amongst the six geopolitical zones. The holding of each of the listed offices is to rotate between the different parts of the country listed therein, So that if one part holds the office for a certain period, it becomes the turn of another part to hold it. The clear intendment is to avoid one zone holding such office permanently to the exclusion of other zones. The wordings of that Article do not support the meaning given to them by the trial Court. The provision did not state or suggest that if a person from one part of the country is already holding the office of National Chairman of the party, no person from that part can be the presidential candidate of the party in an election, only persons from the other part of the country can be such candidate.
(Emphasis mine).

It is curious that the appellant, knowing that the 5th respondent is from the Southern part of Nigeria, freely participated in the primary election conducted on 6/10/18 without any complaint or protest whatsoever, and only wrote

his petition to the 1st respondent’s appeal panel when he failed to clinch the ticket. It is also unfortunate that he failed to adhere to the written undertaking, freely given under his own hand, to support whoever emerged victorious from the exercise.

Having failed to establish non-compliance with the provisions of the 1st respondent’s Constitution in the selection of the 5th respondent as its Presidential candidate for the 2019 General Election, the bottom had fallen out of the appellant’s case predicated on Section 87 (9) of the Electoral Act, 2010, as amended.

For these and the fuller reasons ably advanced in the lead judgment, I find this appeal to be devoid of merit. It is hereby dismissed. I abide by the order made on costs.

AMIRU SANUSI, J.S.C.: The judgment just rendered by my learned brother Ejembi Eko,JSC was made available to me before now. On perusing his lead judgment, I find myself in entire agreement with his reasoning and the conclusion he arrived at that this appeal is devoid of any merit and deserves to be dismissed. While dismissing the appeal, I shall chip in few words in support of the lead judgment.

The appellant herein, is a member of the 1st respondent which is a registered political party which had on 6th October, 2018, conducted primary election to elect its presidential candidate to represent the party in the forthcoming general election. The appellant contested that election along with four other candidates including the 5th respondent, who was at the end of the election, declared winner of the election. The 5th Respondent was declared winner of the election as Presidential candidate of the party (1st Respondent) in the general election having scored 812 votes as against the appellant’s score of 611 votes. Sequel to that, the name of 5th respondent was accordingly submitted to INEC (the 6th respondent) as the party’s Presidential candidate to contest the Presidential election.

The appellant, thereupon became disenchanted with the declaration of the 5th respondent as winner of the election and his subsequent, declaration and submission of his name to INEC, as the presidential candidate of the party (1st Respondent).

The main grudge/grouse of the appellant is predicated on Article 15 (3) (ii) (a) of the SDP Constitution, which was

ratified in 6th October,2018 which reads as follows:-
Article 15(3) states
“(i) The party shall adhere to the principle of zoning and Rotation of Political Offices based on the principle of inclusiveness, equity and fairness to all;
(ii) The party therefore shall observe the following:-
(a) The office of President and national Chairman of the Party shall rotate between the South and North amongst the six(6) geopolitical zone.”

It is sequel to that, the appellant cited the example of the National Chairman of the party Chief Olu Falae and the 5th Respondent who both hailed from the South while he (the appellant) having hailed from the Northern part of Nigeria, should be the one to be declared winner of the primaries. In that regard, he petitioned the 2nd Respondent (the Party National Chairman. Having failed to receive any positive response on his petition, he instituted this action at the trial Court seeking various reliefs as adumbrated in the lead judgment The trial Court granted all the reliefs sought by the appellant.

Piqued by the decision of the trial Court, the respondents appealed to the Court below which upturned the judgment of

the trial Court and set aside the judgment of the trial Court. The lower Court in its judgment had this to say:-
“There is nothing in article 15.3(11) (a) or any part of Exhibit I that states or even suggests so. It is obvious from the clear wordings of that provision that it merely lists the offices that shall rotate between the South and the North and amongst the six geographical zones.”

It would seem to me that the above provisions of the Article did not in anyway contemplate zoning or rotation of political offices as insinuated by the appellant who insists that where a Chairman of the party comes from the South, then the Presidential candidate must come from the north even where he contested and lost, as in this instant case of the appellant.

It is noteworthy that even before the primary elections were held all the contestants inclusive the appellant, signed undertaking that whoever emerged winner of the election, will be supported by all other contestants. (See Exhibit SDP5). It appears to me rather bizarre that despite the “gentleman” undertaking or agreement, the appellant would resile from his undertaking and challenge the

declaration of the 5th respondent as winner of the primary election for the presidential seat.
To me, that is too ungentlemanly to say the least.

I am therefore inclined to agree with the interpretation given to Article 15 on which it gave the proper and intended meaning or purport of the Article. It must be stressed here and it is even trite, that in the process of interpretation of statute, a Court must not give an interpretation which would defeat the intention and purpose of the law makers and should rather adopt a holistic approach and interpret the provisions dealing with a subject matter together so as to give true intention of the law makers. See Ayodele v State (2011) 6 NWLR (pt.1243)309; Attorney General of Federation V Attorney General of Lagos State (2013)16 NWLR (pt.1380) 249; Ojokolobo v Alamu (1987)3 NWLR (pt.61)377 at 402.

Thus, in the light of all that I highlighted above and for the fuller and more detailed reasons given in the lead judgment, I also see no substance in this appeal. The appeal therefore fails and is accordingly dismissed by me. Appeal dismissed.
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PAUL ADAMU GALUMJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Ejembi Eko JSC and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.

The only issue that is germaine to the determination of this appeal is whether the lower Court correctly interpreted the provision of Article 15.3 (ii)(a) of the Constitution of the 1st Respondent. This article provides as follows: –
“15.3(i) The party shall adhere to the principles of Zoning and Rotation of Political offices based on the principles of inclusiveness, justice, equity and fairness to all.
(ii) The party therefore shall observe the following:
(a) The office of the President and National Chairman of the party shall rotate between the South and North and amongst the six (6) Geopolitical zones.”

In its comment on this provision, the lower Court said: –
“There is nothing in article 15.3(ii)(a) or any part of Exhibit 1 that states or even suggests so. It is obvious from the clear wordings of that provision that it merely lists the offices that shall rotate between the South and the North and amongst the six geopolitical zones.”

The Appellant’s claim is that Article 15.3 (ii)(a) of the Constitution of the 1st Respondent provided that where the chairman of the party comes from the southern Nigeria, the president must come from the North. The golden rule of interpretation is that where the words used in the Constitution or in a statute are clear and unambiguous, they must be given their natural and ordinary meaning, unless to do so would lead to absurdity or inconsistency with the rest of the statute. See Ibrahim v Barde (1996) 9 NWLR (Pt.474) 513; Ojokolobo v Alamu (1987)3 NWLR (Pt.61)377 at 402 paras F-H; Adisa v Oyinwola & Ors. (2000)6 SC (Pt.11)47. I have read carefully the provision of Article 15.3 (ii)(a) of the Constitution of the 1st Respondent, and I have not seen anything therein that provides for the zoning and rotation of the office of the chairman of the party and the office of the president, an office which is not within the powers of the party to hold, in such a way that they cannot co-exist within the same zone. The Appellant was aspiring to become a presidential candidate of his party and not a president as reflected in Article 15.3

(ii)(a) of Exhibit 1. Article 15.3 (ii)(a) in my view can only become operational the way the Appellant is suggesting if the candidate of the 1st Respondent is elected and sworn in as the president.

Five aspirants contested the primary election that has brought about this litigation. Four of them including the 5th Respondent were from southern Nigeria. The Appellant did not challenge their eligibility to contest the primary election. Not only that, the Appellant entered into an agreement to support whoever emerged as winner of the primary election. In pursuance of the agreement, each signed an undertaking to support whoever emerged as winner. The undertaking signed by the Appellant was admitted in evidence as Exhibit SDP5. The content of Exhibit SDP5 is reproduced hereunder as follows: –
“I Professor Jerry Gana hereby undertakes (Sic) to support whoever emerges as the winner of the position we are contesting for.”

With all these pieces of evidence in place, could the Appellant have complained if he had won the primary election I do not think so. It is clearly unconscionable for him to turn

round to complain after having undertaken to support whoever emerges the winner of the primary election.

In conclusion, I entirely agree with the lower Court that there is nothing in Article 15.3 (ii)(a) or any part of Exhibit 1 that states or suggests that the president and chairman of the 1st Respondent cannot come from the same zone. If that was the intention of the 1st respondent, it is not so expressed in its Constitution.

Article 15(3)(i) and(ii)(a-c) merely lists the offices that are rotational between the South and the North of Nigeria and amongst the six geopolitical zones, and nothing more.
With these few words and the detailed reasoning in the judgment of my learned brother which I adopt as mine, this appeal shall be and it is hereby dismissed. I endorse all the consequential orders made in the lead judgment, including order as to costs.

UWANI MUSA ABBA AJI, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I am in complete agreement with the lucid reasoning and conclusion arrived at therein but

wish to add a few words of mine.

The Appellant along with four others including the 5th Respondent contested in the Presidential primaries conducted on 6/10/2018 to be nominated as the Social Democratic Party’s (SDP) Presidential candidate for the 2019 Presidential election. The 5th Respondent was declared the winner having scored 812 votes with the Appellant coming second with 611 votes. The name of the 5th Respondent was duly forwarded to INEC as the party’s Presidential candidate for the 2019 Presidential election. The grudge of the Appellant is that, by virtue of Article 15 (3) (ii)(a) of Amended Constitution of the Social Democratic Party, Exhibit I, the 5th Respondent is disqualified to contest the presidential primaries because according to him, Article 15 (3) (ii)(a) of the Amended SDP Constitution provided that where the Chairman of the party comes from South of Nigeria, the President must come from the North by operation of the principle of zoning and rotation in Article 15 (3) (ii)(a) of Exhibit I. He contended that the 5th Respondent stands disqualified as an aspirant to be the Presidential candidate of the 1st Respondent (SDP).

The straight point and issue herein is the bindingness, application and determination of Article 15.3 ((i) & (ii)(a) of the Amended Constitution of the 1st Respondent (SDP) in relation to the zoning and rotating its presidential office to all members of the party. Let me pause to say here that this has nothing to do with the Constitutional right of freedom of association not to be discriminated against and the right to vote and to be voted for as found by the lower Court in its judgment. While the Constitution of the Federal Republic of Nigeria binds all Nigerians, the Constitution of the SDP binds only members of the SDP. See PDP Vs. Sylva (2012) 13 NWLR (Pt. 1316) @ 54, Lau Vs. PDP (2018) 4 NWLR (Pt. 1608) @ 123 and APC Vs. Karfi (2018) 6 NWLR (Pt. 1616) @ 526.

The Appellant argued that, since the 2nd Respondent, (Chief Olu Falae) the National Chairman of the SDP is from the South and the 5th Respondent is also from the south and by the operation of the principle of zoning and rotation in Article 15.3 (ii)(a) of the Amended SDP Constitution 2018, exhibit I, the 5th Respondent stands disqualified as an aspirant to be the presidential

candidate of the SDP, the 1st Respondent and that his name ought to have been forwarded to the INEC as SDP’s Presidential candidate. For ease of reference, Article 15.3 (ii)(a) provides thus:-
“15.3(i) The party shall adhere to the principles of zoning and rotation of political offices based on the principles of inclusiveness, justice, equity and fairness to all.
(ii) The party therefore shall observe the following:
(a) The office of the President and National Chairman of the party shall rotate between South and North and amongst the six (6) Geopolitical zones.”

The provision of Article 15.3 (ii)(a) is clear and unambiguous and do not admit of any ambiguity or fanciful interpretation. The finding of the lower Court as extensively quoted in the lead judgment cannot be faulted.

The provision of Article 15.3 (ii)(a) of the Amended SDP Constitution did not state or suggest that if a person from one part of the country is already holding the office of the National Chairman of the party, no person from that part can be the Presidential candidate of the party in an election.

Although the amended Constitution Exhibit I was ratified and

came into force before the Presidential Primary Election of 6/10/2018, the vested and acquired rights of the 5th Respondent under Exhibit J (the former Constitution) could not have been set aside and applied retrospectively to affect the 5th Respondent. The Appellant having indicated to support anyone who won the Presidential primary election is clear of the fact that there was no clog or encumberance to the applicability and enforceability of Article 15 (3) (i) & (ii)(a) of the amended Constitution, Exhibit I. The Appellant having acquiesced and waived his right to complain, he cannot now be heard to do so. He is estopped from doing so by his conduct and undertaking on Exhibit SDP5.

It is for this reason and the more detailed reasons in the lead judgment of my learned brother, Ejembi Eko, JSC that I too dismiss the appeal as it is devoid of any merit. I abide by the consequential order including orders as to costs.

Appearances:

A. Akubo (SAN), J. A. Abrahams (SAN) with them, Joe Abah, Esq., Agiwon S. Elukpo, Esq. and Caroline Abah, Esq. For Appellant(s)

Omoruyi O. Ediogiawerie, Esq. with him, Victor Shina Akinlabi, Esq. for the 1st-5th Respondents.

Mhir Mson, Esq. with him, U. A. Dibal, Esq. for the 6th Respondent For Respondent(s)

Appearances

A. Akubo (SAN), J. A. Abrahams (SAN) with them, Joe Abah, Esq., Agiwon S. Elukpo, Esq. and Caroline Abah, Esq. For Appellant

AND

Omoruyi O. Ediogiawerie, Esq. with him, Victor Shina Akinlabi, Esq. for the 1st-5th Respondents.

Mhir Mson, Esq. with him, U. A. Dibal, Esq. for the 6th Respondent For Respondent

LawCare Nigeria

PROFESSOR JERRY GANA, CON v. SOCIAL DEMOCRATIC PARTY & ORS(2019)

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