In The Supreme Court of Nigeria

On Friday, the 8^th day of June 2007

 

 

Before Their Lordships

 

 

 

SC. 63/2007

 

 

Between

 

 

And

 

 

 

Reasons for Judgment of the Court

Delivered by

Niki Tobi, J.S.C

 

On 5^th of April, 2007, I dismissed this appeal. I indicated that day that I will give my reasons for the dismissal today. I do so now.

 

The facts of this case as presented by the Court of Appeal are in some material difference from those presented by Dr. Alex Izinyon, SAN, for the 1^st appellant in his brief. The material difference is that Dr. Izinyon has introduced the element of the 1^st respondent not winning the primaries. He said that the 1^st respondent scored 2,061 votes which were less than the 50% of the total votes of 7,504 cast. Dr. Izinyon would appear not to have remembered this important aspect when he settled the pleadings at pages 345 to 348 of the Record.

 

There is yet another aspect. Dr. Izinyon, in Part 2 of his brief, contended that the name of the 1^st respondent was submitted to the 2^nd respondent in error, which error was later corrected. That, to Learned Senior Advocate, was responsible for the substitution of the 1^st respondent for the 1^st appellant. What qualified the 1^st appellant to benefit from the exercise of substitution, counsel did not include in his narration of facts. All he narrated was that the 1^st respondent's score was 37.5% which was short of the minimum score of 50%.

 

Although Dr. Izinyon, in the course of narrating the facts; said that the name of the 1^st respondent was sent to the 2^nd respondent in error, paragraph 4 of the 2^nd and 3^rd Joint Defendants' Statement of Defence averred to the contrary:

 

"In further answer to paragraphs 11, 13, 14, 16, 17, 18, 19 of the Statement of Claim, the 2^nd and 3^rd Defendants deny that the plaintiff's name was submitted to the 1^st Defendant and he is put to the strictest proof thereto."

 

The above narration conveys some contradictions. I will not say a bundle because the aggregate of the contradictions will not sum to a bundle. The duty of counsel is to present the case of his client and they, at times, do so with some sentiments and emotions. This court cannot hold such human feelings and idiosyncrasies against counsel. That a counsel should love his client's case to the level of presenting same with some slant favourable to the client is not a condemnable conduct in so far as there is sincerity in the presentation and not an ambition to overreach the case of the adverse party. Such is the fiduciary professional duty of care counsel owes his client. I have no cause or reason to doubt the sincerity of Dr. Izinyon in this area of narration of the facts. One may be sincere in the position he takes but he could be mistaken in his sincerity at the same time.

 

I have taken up this for only one reason and it is to know the exact factual position. I must say that the 1^st respondent took time and pains to narrate the facts of the case from pages 6 to 9 of the brief. I think he did a good job of the facts. Apart from the tradition of appellate courts taking the narration of facts by the lower courts more seriously than those of counsel in the event of conflict, I am inclined to do just that in the light of the situation in this matter.

 

I should take the narration of facts by the two courts below. The trial Judge narration was brief. I can easily quote the facts here from page 567 of the Record:

 

"Certain facts are not in dispute in this suit. These are that the Plaintiff’s name was submitted to the 1^st Defendant vide exhibit F as the 3^rd Defendant's candidate for the Imo State Gubernatorial election 2007. This is dated 14^th December, 2006. That on the 18^th January, 2007, vide exhibit K the 3^rd Defendant sent to the 1^st Defendant the name of the 2^nd Defendant as its gubernatorial candidate for the same office.  This submission of a second name is the root cause of this action.”

 

The above is the version of the facts by the trial Judge. Let me take the version of the Court of Appeal. It is a bit more comprehensive. Again, I persuade myself to quote the facts from page 670 of the Record:

 

"The facts are that the appellant emerged winner at the Governorship primaries conducted by the Peoples Democratic Party for Imo State on the 14^th of December 2006. The appellant at the contest scored 2,061 votes as against the 36 votes scored by the 2^nd Respondent Engineer Charles Ugwu. The name of the appellant was forwarded to INEC by the 3^rd Respondent as the Governorship candidate sponsored by PDP in compliance with the provisions of section 32(1) and (2) of the 2006 Electoral Act, on the 14^th of December 2006 as shown in Exhs F and G. The 3^rd Respondent on the 19^th of January 2007 forwarded the name of the 2^nd Respondent to the 3^rd Respondent under a letter dated 18^th January 2007 Exh K as the candidate it was sponsoring for Imo State Governorship in April 2007."

                                                                                                                              

The learned trial Judge, after taking the interlocutory matter of jurisdiction, threw out the 1^st respondent's case. I did not see the trial Judge dismissing the suit and so I cannot say that; although the result at the end is the same thing. I should quote the two last paragraphs of the judgment at pages 573 and 574 of the Record:

 

"By the provision of Section 34 of the Electoral Act 2006, I find that a political party has the power to change its nominated candidate for another any time before 60 days to election. In its exercise of the power to change, it needs to inform the INEC in writing not in any prescribed form of the change. It will also give INEC cogent reason for the change which INEC should be able to verify.   In the instant case, the 3^rd Defendant submitted the name of the Plaintiff as its Governorship candidate, informed INEC of its change of candidate and gave INEC a reason for the change. It is left for INEC to verify the reason or not.  But pursuant to all the above, I will say that the political party is within its powers to so change its candidate and have so done as far as the parties on record are concerned."

 

The Court of Appeal did not agree with the learned trial Judge. That court overturned the judgment of the learned trial Judge and allowed the appeal. At page 687 of the Record, Adekeye, JCA, said:

 

"Moreover that pronouncement is not a judicial or judicious exercise of the discretion of the lower court in the circumstances of the case. I shall not hesitate to conclude that the learned trial Judge failed to consider all the aspects of section 34(1) and (2) of the Electoral Act and same has not met the justice of this case. I hereby allow the appeal. Judgment of the lower court is hereby set aside. No order as to costs."

 

The court dismissed the cross appeal.

 

Dissatisfied, the appellants have come to this court. Briefs were filed and exchanged. The 1^st appellant formulated four issues for determination:

 

"1.        Whether the decisions of this Honourable Court in Onuoha v. Okafor (1983) 14 NSCC 494 and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310 on issues of nomination and sponsorship of candidate by a political party have been overtaken by the provisions of Section 34(1) (2) of the Electoral Act, 2006.

 

2.         Whether the learned Justices of the Court of Appeal were right in holding that Section 34 of the Electoral Act, 2006 is justiciable.

 

3.         Whether the learned Justices of the Court of Appeal were right in the interpretation of Section 34(1) (2) of the Electoral Act, 2006.

 

4.         Whether the learned Justices of the Court below were right in holding that Exhibits K, L, and L1 had no probative value having regard to the admission by consent of the said Exhibits by parties at the stage of the proceeding."

 

The 2^nd appellant formulated the following issues for determination:

 

"(a)      Whether the Court of Appeal was right when it held that the action before the trial Court being one of sponsorship and nomination of a candidate by a political party was justiciable, i.e. has section 34(1) (2) however interpreted taken the issue of nomination and sponsorship of a candidate outside the Supreme Court decision in:

 

(a)        P. C. Onuoha v. R. B. K. Okafor, 1983, SNLR pg 244.

 

(b)        Dalhatu v. Turaki, 2003 15 NWLR, pt 843 pg 300.

 

(b)        Whether the Court below was right or not in holding that exhibits, L, L1 & K had no probative value, when the pieces of evidence above were admitted by consent of parties.

 

(c)        Whether the Court of Appeal as constituted by a three man panel instead of 5 Justices, had jurisdiction to hear and determine the matter before it having regard to fundamental, constitutional and salient legal issues raised in the Appeal."

 

The 1^st respondent formulated the following issues for determination:

 

"(1)      Whether, having regard to all relevant laws, documentary evidence before the Court and the complaint in the grounds of appeal, it can be said that, the Court below was wrong in reaching a conclusion that, there was non compliance with section 34(2) of the Electoral Act 2006 in the purported substitution of the name of the Plaintiff with that of the Respondent?

 

(2)        Whether steps taken in breach of a Court order and in purporting to substitute the name of the Plaintiff are not null and void?

 

(3)        Whether the Plaintiffs case is justiciable."

                                                                                          

Learned counsel for the 1^st appellant, Dr. Izinyon, SAN, submitted on Issue No. 1 that the Court of Appeal was wrong to have held that it was not a domestic affair of the 3^rd respondent having scaled a purported nomination and sponsorship and that section 34(1) and (2) of the Electoral Act, 2006 has now become the modern deux ex machina. He cited Onuoha v. Okafor (1983) 14 NSCC 494 and Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310. He dealt with the decisions in the cases at pages 11 to 13 of the brief. He also applied the principles of the two cases at pages 13 to 14 thereof. He argued that section 34(1) can only become applicable and not a domestic affair of the party when the time allowed has elapsed.

 

On Issue No. 2, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that section 34 is justiciable. He contended that the section does not confer any right of action on any person and therefore not justiciable. The only legal right of a candidate is to sue his political party for breach of its Constitution and nothing else.

 

On Issue No. 3, learned Senior Advocate submitted that the Court of Appeal was wrong in the interpretation of section 34. He contended that the Court of Appeal introduced many extraneous considerations into the statute. Counsel itemized them at pages 26 to 27 of the brief. In construing section 34, learned Senior Advocate invoked the Mischief Rule and submitted that recourse to the rule can only be applicable where the mischief sought to be removed has actually been removed. The Legislature rather than remedying the antecedents left section 34(1) and (2) as a banana peel that is slippery and slimy, counsel contended. On the rules of interpretation, learned Senior Advocate cited Ogbonna v. Attorney-General of Imo State (1992) 1 NWLR (Pt. 220) 647 at 24, IBWA Ltd, v. Imano Ltd. (1988) 7 SCNJ 326 at 335; Ugu v. Tabi (1997) 7 NWLR (Pt. 531) 268, Ibrahim v. Mohammed (2003) FWLR (Pt. 156) 902 at 923: NBN Ltd, v. Weide Co. (Nig) Ltd. (1996) 8 NWLR (Pt. 465) 150 at 165; Egbe v. Yusuf (1992) 6 NWLR (Pt. 245) 1; Kraus Thompson Org. v. NIPSS (2004) 17 NWLR (Pt. 901) 44 at 60-61; Udo v. OHMB (1993) 7 NWLR(Pt. 304) 139. Relying on Exhibits E, F, K. L and L1, learned counsel submitted that the exhibits satisfied the requirements of section 34(2) of the Electoral Act. He said that it is not the duty of the court to audit the reason for the change and whether it has been verified or not as the party who has made the substitution within the time provided by law is exercising its lawful right unfettered. He cited Onuoha v. Okafor (Supra); Dalhatu v. Turaki (Supra); Agwuna v_. Attorney-General of Federation (1995) 5 NWLR (Pt. 396) 441 at 435; Araka v. Egbue (2003) 17 NWLR (Pt. 844) 1 at 2; Ikpenowor v. Ikojunga (2001) FLWR (Pt. 62) 960 at 1966-1967; LSDPC v. Adeyemi-Bero (2005) 8 NWLR (Pt. 927) 330 at 357 to 358. Citing Green v. Green (1987) 2 NSCC 1115 at 1143; INEC v. Musa (2002) 17 NWLR (Pt. 786) 417; Sodipo v. Lemmikainen (1986) 1 NWLR (Pt. 15) 220 At 238; Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 386) 136 at 152; Adeniji v. Adeniji (1972) 7 NSCC 187; Hauma v. Akpe-Ime (2000) 12 NWLR (Pt. 680) 156; Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22.

 

Still on section 34(1) and (2), learned Senior Advocate submitted that the section is not mandatory, as there is no procedure for compliance, and sanction for non-compliance. By way of analogy, learned Senior Advocate called the attention of the court to section 21(8) of the repealed Electoral Act, 2002. He cited Craies on Legislation at page 463; Amokeodo v. IGP (1999) 6 NWLR (Pt. 607) 467 at 480-481 Ogigie v. Obiyan (1997) 10 NWLR (Pt 524) 179 at 190; Pan Bisbilder Ltd v. First Bank (2000) FWLR (Pt. 2) 177 at 188; Rimi v. INEC (2005) 6 NWLR (Pt. 920} 56 at 80 on the directory nature of section 34.

 

On Issue No. 4, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that Exhibits K,L and L1 had no probative value. He specifically submitted that Exhibit K made on 8^th January, 2007 in a suit instituted on 17^th January 2007 only against INEC was not made during the pendency of the suit nor made in disobedience of an interim order. He also argued that Exhibits L and L1 did not contravene section 91(3) of the Evidence Act and therefore admissible. As the documents were admitted by consent, they are admissible, counsel contended.  He cited Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671 at 690; Olukade v. Alade (1976) 1 All NLR 67; Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78; Anyebosi v. R. T. Briscoe Nig. Ltd. (1987) 6 SCNJ 9.

 

Taking the issue of ex parte order of interim injunction, learned Senior Advocate pointed out that at the time the court granted the interim order on 19^th January 2007, the 1^st appellant and the 3^rd respondent were not parties as they only became parties on 6^th February, 2007. He relied on Kotoye v. CBN (1989) 2 SCNJ 31, 7Up Bottling Co. Ltd v. Abiola and Sons Ltd. (1995) 3 NWLR (Pt. 383) 257 and 276; Okeke v. Okoji (2000) 1 NWLR (Pt. 642) 641 at 655. Assuming without conceding that the 1^st appellant and 3^rd respondent were aware of the interim order, they applied timeously for a discharge of the ex parte order of 19^th January, 2007. To learned Senior Advocate, there was therefore no longer alive an interim order to be disobeyed. He cited Chief Land Officer v. Alor (1991) 4 NWLR (Pt. 187) 617; SAP (Nig) v. CBN (2004) 15 NWLR (Pt. 897) 665 at 688-689; Ariori v. Eleme (1983) NSCC 1 at 8; Oguniayi v. Attorney-General of Rivers State (1997) 6 NWLR (Pt. 508) 201. Counsel urged the court to examine the content of Exhibits L and L1 and come to the conclusion that the exhibits satisfied the requirement of section 34(1) and (2) of the Act. He urged the court to hold that the name of the 1^st respondent was submitted, by error in Exhibit F. He invited the court to do the arithmetical calculation as the documents are before it, documents which were tendered by the 1^st respondent and therefore qualify as admission against interest. Learned Senior Advocate urged the court to allow the appeal.

 

Learned Senior Advocate for the 2^nd appellant/3^rd respondent, Chief Joe-Kyari Gadzama on Issue No. 1, referred to section 34(1) and (2) of the Electoral Act, 2006 and section 23 of the repealed Electoral Act, 2002 and submitted that the bottom line of the matter is that political parties have the freedom to substitute any candidate who has been nominated 60 days before the election while giving reasons for same. He said that the basis for the inclusion of the phrase "cogent and verifiable" perhaps may have been to curb the arbitrariness of political parties in the act of substitution. While so conceding, he contended that the reason for the insertion of the phrase is not to remove the freedom and rights of political parties to substitute candidates and vest same in the courts or the Independent National Electoral Commission, but rather to entrust in the INEC the duty of ensuring that what the party substituting considers as cogent is satisfactory.

 

He pointed out that section 34(2) of the Act did not specify any criterion for ascertaining whether reason(s) adduced by political parties are cogent or not; and that there is no yardstick for the implementation of the said section because there is no sanction for non-compliance. He also pointed out that there is no specification for redress for a candidate who has been substituted and who claims that his right has been violated. Counsel relied on the mischief rule of interpretation. He cited Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) 130; SPDC v. Isaiah (1997) 6 NWLR (Pt. 505} 236 and Omoijahe v. Umoru (1999) 8 NWLR (Pt. 614) 178 at 188.

 

Learned Senior Advocate submitted that the intention of the law-makers is to ensure that the business of substitution of candidates should be left in the hands of political parties and that it is not the business of the court to hold that a reason given by a political party is not cogent. To Learned Senior Advocate, if the courts do so, it will amount to judicial law making. He cited Attorney-General of Anambra State v. Attorney-General of the Federation (2005) 18 NWLR (Pt. 958 601. Citing Onuoha v. Okafor (supra), learned Senior Advocate submitted that section 34 has not taken away the issue of sponsorship and nomination of candidates from political parties.

 

Taking Issue No. 2 learned Senior Advocate submitted that parties are bound by their admissions. He therefore contended that as Exhibits K, L and L1 were admitted by consent of the parties, they are bound by them. Learned Senior Advocate argued that at the time Exhibits L and L1 were made, there was no evidence before the court that they were made in contemplation of a suit. Consequently, section 91 of the Evidence Act does not apply, counsel submitted. He said that the exhibits were not caught by the doctrine of lis pendis and there was no disobedience of court order.

 

On Issue No. 3, learned Senior Advocate argued that five justices instead of three ought to have sat on the appeal before the Court of Appeal. Although he did not give the reason why the panel should have been so constituted, he cited Sken Consult v. Ukey (1981) 1 SC 1 at 17 and Attorney-General of Lagos State v. Hon. Justice Dosunmun (1989) 2 NWLR (Pt. 111) 552 at 556 and 557. He urged the court to allow the appeal.

 

Learned Senior Advocate for the 1^st respondent, Prince L. O. Fagbemi raised a preliminary objection in respect of grounds 4, 8, 9, 10, 11, 13 and 14 on the ground that being grounds of fact or mixed law and fact, leave of court was necessary. As that leave was not sought, the grounds are incompetent and should be struck out. He cited Erisi v. Idika (1987) 4 NWLR (Pt. 66) 503.

 

Taking Issues Nos. 1 and 2 together, learned Senior Advocate examined the tenor of section 34 of the Act and submitted that under the canon of interpretation of statute, words of a statute are to be given their natural or ordinary, meaning; hence where a word of a statute admits of no ambiguity, literal or natural meaning should be given and preferred. He cited Adah v. NYSC (2001) 1 NWLR (Pt. 693) 65 at 79-80.

 

While conceding that in a literal construction of section 34 of the Act, It is beyond doubt that a political party has the right to change any of its candidates at least 60 days to the election, he argued that where the time to substitute has lapsed, a political party cannot as a matter of course or for the fun of it substitute or replace a candidate whose name had earlier on been submitted and who has by virtue acquired a vested right/interest except in case of death. He examined in admirable detail the provision of section 34 from pages 17-24 of his brief. He cited Ezekwesili v. Onwuagbu (1998) 3 NWLR (Pt. 541) 217 at 237; Ojukwu v. Obasanjo (2004) 12 NWLR {Pt. 886) 169, Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 702; Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 at 691; Co-operative and Commerce Bank Nigeria Ltd, v. Attorney-General of Anambra State 1992) 8 NWLR (Pt. 261) at 556; Kamba v. Bawa (2005) 4 NWLR (Pt .914) 43-at 74-75; UNTHBM v. Nnoye (1994) 8 NWLR (Pt. 363) 406; Nigerian Ports Plc v. Osinuga (2001) 7 NWLR (Pt. 712) 412 at 430 and Ejileme v. Okpara (1998) 9 NWLR {Pt. 567) 587 at 619.

 

He dealt with the importance of history of legislation, particularly section 34(2) of the Act from pages 23 to 33 of the brief.   He cited in support of his arguments, Halsbury's Law of England, 4^th edition, Re Issue Vol. 44(1); Maxwell on the Interpretation of Statutes, page 19; Ugu v. Tabi (1997) 7 NWLR (Pt. 518) 368 at 380; CCB (Nig) Plc v. Attorney-General of Anambra State (1992) 8 NWLR. (Pt. 261) 528 at 556; Pan Bisbilder (Nig) Ltd, v. FBN Ltd. {2000} 1 NWLR (Pt. 642) 684 at 693: Ifezu v. Mbadugha (1.984) NSCC 314 and Adefulu v. Okuleja (1996) 9 NWLR (Pt. 475) 668 at 693.  

 

Examining the effect of Exhibits F, K, L, and M, learned Senior Advocate submitted that the Court of Appeal was correct in not giving probative value to them for two reasons, viz: (1) They were made in disobedience of a court order and (2) they were made in anticipation of the litigation thus violating section 91 (3) of the Evidence Act. He dealt with Exhibit L in greater detail and made this submission at page 38 of the brief:

 

"Since all concerned know the consequences of writing or taking action to prejudice a pending case, the consequences of writing Exhibit L and L1 should be visited on the 2^nd and 3^rd Defendants. The consequences of Exhibits F, K, L and M can be upheld and that Exhibit F remains the only document by which Exhibit K will be judged. Since Exhibit K has been unhelpful, Exhibit L cannot be put to any beneficial use in favour of the 2^nd and 3^rd Defendants in view of the foregoing submission. Thus Exhibit L, having been made to overreach the case before the court should be declared void."

 

He cited Kankia v. Maigemu (2003) 6 NWLR (Pt. 817) 469 at 517 to 518.

 

On whether the name of the 1^st respondent has been lawfully removed or substituted, learned Senior Advocate submitted that the name was wrongly substituted in violation of section 34(2) of the Electoral Act; a provision which is mandatory and must be complied with. He contended that with the acceptance and publication of the name of the 1^st respondent as the sponsored candidate of the 3^rd respondent, he became vested with a right under the Electoral Act and that right or interest can only be taken away in accordance with the provision of section 34(2) of the Act, as it relates to change of name of a candidate. He cited Ndayako v. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 216 and Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734.

 

Learned Senior Advocate urged the court to ignore Exhibits K, L and L1 because they did not meet the requirements of section 34(2). He submitted in particular that as Exhibit K did not say that it was changing, substituting or replacing the earlier candidates submitted vide Exhibit F, it is a worthless document. On Exhibit L, learned Senior Advocate submitted that although it said that the 1^st respondent's name was submitted in error, the nature of the error was not stated. He referred to the finding of the learned trial Judge to the effect that Exhibit K was silent as "to what it is" and argued that the finding, not being challenged, is deemed admitted. He cited Okonkwo v. INEC (2004) 1 NWLR (Pt. 854). 242 at 282; Oshodi v. Evifunmi (2000) 13 NWLR (Pt. 684) 298. He also urged the court not to give probative value to Exhibits L. and L1 because they were made during the pendency of the proceedings in which the 3'^d respondent was involved.

 

On the disobedience of the interim order, learned Senior Advocate submitted that as Exhibits E1 and L7 were made and forwarded to INEC during the pendency of the life span of the order, at least before 15^th February 2007, any steps taken before effluxion of time as to the life span of the court order remains incompetent. Counsel urged the court to hold that Exhibits L and L1 have no probative value, having been made during the subsistence of a court order.

 

On Issue No.3, learned Senior Advocate submitted, that the case is justiciable as the court has jurisdiction to hear it. He argued that as the decision of Onuoha v. Okafor (supra) was predicated on the repealed Electoral Act, the decision is no longer apposite in the present dispensation and it will be wrong to continue to rely on such a case. Judicial authorities must only be cited if the facts are similar, learned Senior Advocate contended. But counsel in the early parts of his brief invited us to overrule Onuoha. I do not know how he can reconcile the two submissions, particularly in the light of his reference to Adegoke Motors Nig. Ltd, v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 265 and 266.

 

Learned Senior Advocate submitted that the 3^rd respondent is bound by its Constitution and guidelines in particular Exhibits A and B. He cited sections 221 and 222 of the Constitution which provide for political parties to make their Constitutions and Regulations. Citing paragraph 5 of the Amended Statement of Claim and paragraph 1(i), (ii) and (iii) of the appellant's reply to the Statement of Defence of the 2^nd defendant, he submitted that none of the parties denied the fact that primaries which saw the emergence of 1^st respondent were conducted under and in compliance with the Constitution and Electoral Guidelines of the party, Exhibits A and B. While conceding that the 3^rd respondent can substitute or change a candidate it is sponsoring by virtue of Article 51 of the Electoral Guidelines, such a substitution or change should now comply with section 34(2) of the Electoral Act.

 

On the submission of learned counsel for the 1^st appellant that the 1^sl respondent did not win 50% of the votes at the primaries as provided for under the 3^rd respondent's Constitution and Guidelines, learned Senior Advocate urged the court to discountenance that submission on the ground that it is incompetent. He argued that the issue of wining primaries or not is an issue coming up for the first time in this court and 1^st appellant ought to have obtained the leave of this court to raise the fresh issue. He cited Adjo v. State (1986) 2 NWLR (-Ptr24) 581: Orogan v. State (1988) 5 NWLR (Pt 44) 688. He urged the court to dismiss the appeal.

 

Learned Senior Advocate for the 1^st respondent in his brief to the 2^nd appellant/3^rd respondent (Peoples Democratic Party) adopted the brief to of in respect of the 1^st appellant, Engineer Charles Ugwu. He submitted in addition that the argument of the 2^nd appellant/3^rd respondent on the composition of the panel of justices does not arise as no interpretation of any part of the Constitution of the Federal Republic of Nigeria, 1999 was in issue in the Court of Appeal and none was decided. I do not intend to take his arguments on this issue further as learned Senior Advocate for the 2^nd appellant/3^rd respondent rightly withdrew the issue.

 

Dr. Izinyon, SAN, for 1^st appellant, in his reply brief submitted that the hullabaloo in the case by the 1^st respondent to overrule the decision in Onuoha v. Okafor (supra) is grossly misconceived in law and a non sequitur.   He gave ten reasons in the reply brief why the decision should not be overruled.

 

Although it is elementary law that a reply brief only replies to law, the 1^st appellant in paragraph 2.0, 2.1 and 2:2 replied to facts, contending that there is nowhere in all the facts where 1^st respondent claimed he won the primaries by scoring 50% of the total votes cast in Exhibit E. He cited Exhibit B.

 

On whether the claim of the 1^st respondent was essentially declaratory, learned Senior Advocate submitted that the claim was not only declaratory but consists of a positive relief of injunction in paragraph 8. He contended that the argument of learned Senior Advocate for the 1^st respondent that where a statute provided for a particular mode of doing a thing no other method must be adopted is not applicable to the case on appeal. If the lawmaker intended a sanction to be imposed for non-compliance it would so say expressly. On the purpose and essence of section 34 of the Act, learned Senior Advocate referred to Issues Nos. 2 and 3 arising from grounds 1,2,3,5,6,7,8,10 and 12.

 

Learned Senior Advocate submitted that the 1^st respondent did not properly invoke the mischief rule. He gave four reasons for his submission at page 5 of the reply brief. He examined the cases of Pan Bisbilder Ltd v. First Bank (2000) FWLR {Pt. 2) 177 at 188 and Ifezue v. Mbadugha (1984) NSCC 14. He urged the court once again to allow the appeal.

 

Let me quickly deal with the preliminary issues raised by Prince Fagbemi and Chief Gadzama, learned Senior Advocates. They are two. The one raised by Prince Fagbemi was on grounds of appeal involving mixed law and facts which needed leave of court and that leave was not obtained. The second one by Chief Gadzama was that the panel of the Court of Appeal was not properly constituted. Both counsel applied to withdraw their objections. That is good judgment for which commend them. The objections are therefore struck out.

 

The fulcrum or crux of this appeal is the interpretation of section 34 of the Electoral Act 2006, specifically section 34(2). Let me read the whole section for completeness.

 

"(1)      A political party intending to change any of its candidates for any election shall inform the Commission of such change in writing not later than 60 days to the election.

 

(2)        Any application made pursuant to subsection (1) of this Section shall give cogent and verifiable reasons

 

(3)        Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (l) of this Section."

 

The underlying principle in the interpretation of a statute is that the meaning of the statute or legislation must be collected from the plain and unambiguous expressions or words used therein rather than from any notions which may be entertained as to what is just and expedient. See Ahmed v. Kassim (1958) 3 FSC 51; Lawal v. GB Ollivant (1972) 3 SC 124. The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the statute as a whole. See Onasile v. Idowu (1961) 1 All NLR 313. This is because it is the duty of the Judge, to construe the words of a statute and give those words their appropriate meaning and effect. See Adejumo  v. The Military Governor of Lagos State (1972) 3 SC 124. It is certainly not the duty of a Judge to interpret a statute to avoid its consequences. See Anya v. Henshaw (1972) 5 SC 87. The consequences of a statute are those of the Legislature; not the Judge. A Judge who regiments himself to the consequences of a statute is moving outside his domain of statutory interpretation. He has by that conduct engaged himself in morality which may be against the tenor of the statute and therefore not within his judicial power.

 

It is only when the literal meaning result in ambiguity or injustice that a Judge may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. See Mobil v. FBIR (1977) 3 SC 53. The above is an exception to the rule rather than the rule. In the construction of a statute, the primary concern of a Judge is the attainment of the intention of the Legislature. If the language used by the Legislature is clear and explicit, the Judge must give effect to it because in such a situation, the words of the statute speak the intention of the Legislature.See Ojokolobo v. Alamu (1987) 3 NWLR (Pt 61) 377.

 

The words in a statute are primarily used in their ordinary grammatical meaning or common or popular sense and generally as used as they would have been ordinarily understood. See Garba v. FCSC (1988) 1 NWLR (Pt 71)449. In construing a statute, the Judge must pay particular attention to the grammar or syntax in or underlying the construction. This does not make the Judge or turn him as a grammarian. By his professional training and his regular application of that training to the construction of statutes, he becomes an expert. His expertise coupled with the fact that as a Judge, words are his tools, his professional ability to construe the grammar or syntax in a statute cannot be in doubt.

 

I now take the Mischief Rule. This is important because the Court of Appeal examined part of the rule at page 680 of the Record:

 

"Interpretation of statute is an indispensable aspect of adjudication. It is not unusual to be guided or persuaded by historical facts culminating into promulgation of certain laws in their interpretation for the comprehension of their subject matter. This has followed the footsteps of the legislators who in their role as law makers have been guided by history of past events in promulgating laws to correct the mischief meant to be cured by such legislation."

 

'Reacting to the invocation of the'place of history in the Mischief Rule, Dr. Izinyon, SAN, said on page 28 of his brief:

 

"It is submitted that recourse to the historical Rule can only be applicable where the mischief sought to be removed has actually been removed. The Legislature rather than remedying the antecedents left section 34(1) (2) of the Act as a banana peel that is slippery and slimy."

 

While I do not want to go into the statement whether section 34(1) (2) was left as a banana peel that is slippery and slimy, I should take for ease of understanding the Mischief Rule, the history of the rule and its content. The Rule was formulated by the Barons of the Exchequer in 1584 in Heydon's case, 3 Co. Rep. 7 at 76 as follows:

 

"...  that for the sure and true interpretation of all statutes   in   general (be  they   penal   or  beneficial restrictive or enlarging of the common law) four things are to be discerned and considered: (1^st) What was the common law before the making of the Act.   (2^nd) What was the mischief and defect for which  the common law did not provide. (3^rd) What remedy the Parliament had resolved and appointed to cure the disease of the commonwealth.   (4^th) The true reason of the remedy, and then the office of all the Judges is always to make such construction as shall suppress the   mischief and   advance   the   remedy   and   to suppress    subtle    inventions    and    evasions    for continuance   of the   mischief   and   prop   private commodo, and to add force and life to the cure and remedy, according to the true intention of the makers of the Act, pro bono publico."

 

It is clear from the above that to properly ascertain the mischief aimed at by a statute it is sometimes helpful to look into the history of the statute. Therefore in construing a statutory provision which is ambiguous, preference should be given to the view which would not lead to public mischief. See Ifezuo vs Madugha (1984) 1 SCNLR 427. One of the most useful guidelines to interpretation is the mischief rule which considers the state of the law before the enactment, the defect which the statute sets out to remedy and/or prevent, the remedy adopted by the Legislature to cure the mischief and the true reason of or behind the remedy. The duty of a Judge therefore is to adopt such interpretation that will enable the suppression of the mischief and to promote the remedy within the intent or intention of the statute. See Savanah Bank vs Ajilo (1989) 1 NWLR (Pt. 97) 305. To arrive at a reasonable construction of a statute, the Judge is entitled, following the Rule in Heydon's case, to consider how the law stood when the statute was passed, what the mischief was for which the old law did not provide, and the remedy which the new law has provided to cure that mischief. See Wilson v. Attorney -General of Bendel State (1985) 1 NWLR (Pt. 17)572.

 

With the above background of the law, I shall take the submissions of counsel and construe section 34(2) of the Electoral Act, 2006. The submissions are three: non-justiciability of the subsection, construction of the word "shall" in the subsection as "may" and whether section 34 of the Act is a replay of section 23 of the Electoral Act of 2002. I will take the above seriatim.

 

Dr. Izinyon submitted that by the phraseology of section 34 of the Act, it does not confer any right of action on any person. He contended that in order to hold a piece of section of a statute justiciable, this court has had cause to examine the statement and the reliefs. By the claim and reliefs, the issues are not justiciable, learned Senior Advocate submitted. Chief Gadzama submitted that the intention of the law makers is to ensure that the business of substitution of candidates should be left in the hands of political parties and that the courts have no business to hold that a reason given by a political party is not cogent. Although Chief Gadzama did not use the expression "not justiciable" as Dr, Izinyon, he says the same thing.

 

Are they right?  I think not.  Draftsmen are not miserly with their language of ousting the jurisdiction of the courts when they so wish or intend.  They state their mind or intention clearly in order to avoid any speculation or conjecture about their intention. Let me give some examples from the 1999 Constitution. Section 6(6)(C) and (d),  143(10), 188(10) and 308 clearly provide for ouster clauses.  Because ouster clauses are antithetical to the rule of law, courts of law can only surrender to them if they are provided in a statute. And because of their posture of enmity, draftsmen clearly provide for them in a statute and therefore never subject to subtle or clever interpretation. If the National Assembly intended that jurisdiction of the courts should be ousted, in respect of section 34(2) of the Electoral Act, 2006 there should have been a clear ouster clause. In view of the fact that the subsection does not contain ouster clause this court cannot read into the provision such a clause. That will be interfering with the function of the Legislature.

 

While I agree, entirely with learned Senior Advocates that the duty is on the Independent National Electoral Commission to interpret what is cogent and verifiable, I do hot agree with them that the tennis ball ends at the court of the INEC. In my humble view, the tennis ball moves from the court of INEC to the court of law at the instance of an aggrieved party, who is not satisfied with the interpretation of what is cogent and verifiable.

 

And that takes me to the two expressions. What do they mean? First, the word cogent. Counsel for the 1^st respondent lifted the definition of cogent from Chambers Dictionary, New Edition (1990) as "powerful; convincing". He also lifted the definition of the word from Oxford Advanced Learners Dictionary of Current English 6^th edition, as "strongly and clearly expressed in a way that influences what people believe".

 

I agree with the above definitions. Cogent, usually used in the context of reasons or arguments, tends, to persuade or to produce belief. It must convince the person it is addressed. The reason or argument must be satisfactory to the person it is addressed. Where INEC is convinced or satisfied with the cogency of the reason, section 6 of the Constitution vests in the Judiciary the power to interpret the subsection at the instance of a party aggrieved with the interpretation of INEC. That, in my view, is the basis or essence of the introductory stuff in paragraphs 1.1, 1.2; 1.3 and 1.4 of the 1^st respondent's brief. The role of the Judiciary, very aptly stated in the brief, cannot be taken away in the absence of an ouster clause.

 

The second word is "verifiable". Again, counsel for the 1^st respondent lifted the meaning of the word from The Oxford Advanced Learner's Dictionary as "To check that something is true or accurate... To show or confirm". I accept the definition. The verb "verify", a variant of the adjective "verifiable" means to make certain that a fact or statement or a state of things as stated is correct or true. It also conveys an element of "confirm". This therefore means that the noun "verification" has good company with the noun confirmation. If an aggrieved party is not satisfied with the exercise  of verification  by the 2^nd respondent, he can seek redress in a court of law.

 

It is the argument of Dr. Izinyon that section 34{2) is directory and not mandatory. He specifically submitted that the use of the word "shall" in the absence of any sanction cannot be said to be mandatory, especially as to how it should be enforced. Learned Senior Advocate did not call the attention of the court to any authority to the effect that in the absence of a specific sanction in a section, the word "shall" must be interpreted as directory. I know of no authority too. And when I say this, I do not take what counsel quoted in paragraph 6.30 as authority for his proposal because it is not apt.

 

In the interpretation of statute, the word "shall" has various meanings. It may be used as implying futurity or implying a mandate or as contended by Dr. Izinyon, direction or giving permission. The word "shall" when used in a statutory provision imports that a thing must be done and that when the negative phrase "shall not" is used, it implies that something must not be done. It is a form of a command or mandate. See Nigeria LNG Limited v. African Development Insurance Co. Ltd. (1995) 8 NWLR (Pt. 416) 677. Generally, when the word "shall" is used in a statute, it is not permissive. It is mandatory. See Col. Kaliel Rtd. V. Alhahji Aliero (1999) 4 NWLR (Pt. 597) 139. The word "shall" in its ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. As contended by Dr. Izinyon, it is sometimes intended to be directory only and in that case it is equivalent to "may" and will be construed as being merely permissive. See Amokeodo v. Inspector-General of Police (1999) 6 NWLR (Pt. 607) 467.

 

It is my firm view that the word "shall" in section 34(2) is clearly mandatory and peremptory and not directory or permissive. In other words, by the subsection the 3^rd respondent, must in its application to the 2^nd respondent, give cogent and verifiable reasons for the change of candidate. Where the 3^rd respondent fails to give any reasons or gives reasons which are not cogent and verifiable, an aggrieved party has the legal right to seek redress in a competent court of law by virtue or in virtue of section 6 of the Constitution. This is what the 1^st respondent did and I cannot fault him for doing so.

 

Learned Senior Advocate for the 2^nd appeltant/3^rd respondent called this "judicial law making". According to counsel, "this is so because section 34 of the Act did not expressly provide for the duty of the court to adjudicate on whether a reason advanced by a political party is cogent or not. He cited Attorney-General Adamawa State v. Attorney-General of the Federation (2005) 18 NWLR (Pt, 958)601.  What is the meaning of the expression, the Judge making the law or what learned Senior Advocate called judicial law making? A Judge is accused of making the law where there is no statute or statutory provision on the issue and this includes for all purposes the Constitution. This is because the only constitutional function of the Judge is, put in the conservative latinism, judicium est quasi juris dictum, meaning judgment, as it were, is a declaration of law. In other words, a law must be in existence before a Judge interprets it. If there is no law on an issue, a Judge has nothing to interpret and if he goes to interpret where there is no law, he will be deemed to have made effort to hold the air in his hands, which is physically impossible. It is in such a situation that a Judge is accused of making the law. In the instant appeal, section 34 is there in the 2006 statute for a Judge to interpret and that is the primary constitutional function of a Judge, a function that cannot be denied him. That will make nonsense of section 6 of the Constitution. The above apart, I do not think, the case learned Senior Advocate cited is an authority for the legal proposition he made. The case in my humble view, dealt with what this court called judicial legislation or legislative judgment; which is diametrical to the theory of judicial law making. The difference is that in Attorney-General Adamawa State this court was concerned with the Legislature interfering with the functions of the Judiciary. I think the court was concerned with the construction of the Allocation of Revenue (Abolition of Dichotomy in the Application of the Principles of Derivation) Act, 2004.

 

I should now resort to the mischief rule in the construction of section 34(2) of the Electoral Act, 2006. Following the mischief rule takes me back to history of about four years. The bus stop of the four years is the repealed Electoral Act of 2002. I think counsel referred to section 23 of the repealed Act. The section reads:-

 

"Any political party which wishes to change any of its candidates for any election under this Act may signify its intention in writing to the Commission not later than 30 days to the date of Election."

 

Learned Senior Advocate for the 2^nd appellant/ 3^rd respondent submitted at paragraph 4.02 of his brief that "section 23 of the 2002 Electoral Act is in pari materia with section 34 of the 2006 Act and that the only difference is that the phrase cogent and verifiable reason" was not contained in the 2002 Act". With respect, I do not agree with him.   There are other differences apart from the phrase "cogent and verifiable reason".   The first major difference is that section 23 is  one single  section  without subsections. Section  34  is  one  section consisting of three subsections, Second, while section 23 provided for thirty days for political party to change a candidate, section 34(1) provides for sixty days. The third difference is that section 23 did not provide for the situation or position in section 34(2). Fourth, so too the situation or position in section 34(3) which provides for substitution or replacement in the event of death outside the sixty days required in section 34(1). Learned Senior Advocate is with me in the third difference. As a matter of fact, he brought it out clearly in his brief.

 

I know as a matter of fact that both the 2002 and the 2006 Acts were enacted by the National Assembly; one by the National Assembly that existed between 1999 and 2002 and the other by the current National Assembly. Why did the current National Assembly change the permissive "may" in the 2002 Act to the mandatory "shall" in the 2006 Act if the legislative body did not intend any difference? This question is relevant in the light of the submission of Dr. Izinyon. I think this is the application of the mischief rule.

 

Chief Gadzama, SAN, submitted that whether such non-inclusion was intended or not, the bottom line is that political parties have the freedom to substitute any candidate who has been nominated not later than sixty days to the election while giving reasons for same. I entirely agree with him, subject however to the rider that the reasons given must be cogent and verifiable by a court of law at the instance of an aggrieved party. I think I have flogged this point over and over.

 

Chief Gadzama, SAN, correctly, in my view, opined that the basis for the inclusion of the phrase "cogent and verifiable" perhaps may have been to curb the arbitrariness of political parties in the act of substitution.  Prince Fagbemi, put it more strongly when he said in paragraph 1.6 of his brief that "by introducing section 34 of the  Electoral Act 2006, the Legislature intends to curtail the rascality of the past which led to the decisions of superior courts in cases". Counsel cited six cases including Onuoha v. Okafor (supra) and  Dalhatu v. Turaki (supra).   If the intention of section 34(2), to use the correct language of Chief Gadzama, is "to curb the arbitrariness of political parties in the act of substitution", could the intention of the National Assembly in providing for section 34(2) merely to enable the "political parties have the freedom to substitute any candidate who has been nominated not later than 60 days before the election" and for 2^nd respondent to be the alpha and omega of deciding on the subsection without the court playing its constitutional role of an arbiter in the event grievance? That is in essence the argument of Chief Gadzama. That is also materially the argument of  Dr. Izinyon, although he is not as dogmatic as Chief Gadzama in respect of the freedom of the 3^rd respondent to substitute a candidate.

 

Considering the fact that the word freedom in the context means, not being under control of any person or thing, and power or right to do, say or do whatever one wants to, there is every justification to disagree with Chief Gadzama. By the expression, a political party and indeed the 3^rd respondent has the freedom of the air to change a candidate and in so far as it does so within the 60 days limit, the party cannot be questioned. But is that the freedom learned Senior Advocate has in mind when he added the words "giving reasons for same” in paragraph 4.03. I do not think so. Of course, it can so mean if Chief Gadzama is of the view that the reasons the political party will give must be accepted by the 2^nd respondent come rain, come sunshine. In such a situation, the reasons could be merely cosmetic.

 

Is that the intention of section 34(2)?   No.  The subsection is much more than that.  It is not only an affair between a political party and INEC, if a person is aggrieved by the decision of INEC.   And that is where the courts come in and that was why this matter was commenced by the 1^st respondent in a court of law.

 

Were any reasons given by the 3^rd respondent for substituting the name of the 1^st respondent for the 1^st appellant as required by section 34(2) of the Act?. I do not think both Dr. Izinyon and Chief Gadzama gave a correct answer to this question.   But Prince Fagbemi did.     Dr. Izinyon submitted that the name of the 1^st respondent was submitted in error.   Chief Gadzama, if I remember rightly, in his oral address, gave a few reasons for the substitution.   I think he tried the court on the generic reason of "error" too, like Dr. Izinyon. These are facts which ought to have been set out in the case of the defendants in the trial court.   As facts they belong to the defendants and counsel qua advocates cannot supply them even at the trial court not to talk of the Supreme Court. . The reasons given by Chief Gadzama in his oral submission should have made so much difference, if not all the difference in this appeal, if they emanated from the head and mouth of the defendants.

 

Assuming that the 3^rd respondent committed an error in submitting the name of the 1^st respondent, what was the error? An error is a mistake. It is the state or quality of being wrong or mistaken. Although error is a more formal word in usage than mistake, they are synonyms. And so, I ask what was the error or mistake of the 3^rd respondent? And here, I go to the submission of Dr. Izinyon that the 1^st respondent scored 2,061 votes which is 37.5%. In his words: "Little wonder the 3^rd respondent reiterated its stand that his name was substituted in error." He submitted as follows in paragraph 2.3 of page 5 of his brief:

 

"He only scored the highest votes of 2,061 which was short of 50% of the total votes of 7,504 required to win the primaries, as provided for in paragraph 21(n) of Exhibit B at page 243 of the record."

 

And so the error for the substitution, according to Dr. Izinyon, was the failure of the 1^st respondent to score 50%? Did the 1^st appellant score 50% to deserve the substitution? Dr. Izinyon did not extend his argument to the 1^st appellant. I expected him to do so. It is possible he forgot to do so. In order to fully appreciate the score at the primaries, I shall reproduce verbatim ad literatim the scores of the candidates in Exhibit E.

 

Peoples Democratic Party Nominated Gubernatorial Aspirants

 

S/No

Name