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In The Supreme Court of Nigeria
On Friday, the 18th day of
January 2008
Before Their Lordships
S.C. 252/2007
Between
And
Reasons for Judgement of the Court
Given by
George Adesola
Oguntade. J.S.C.
On 25-10-2007, this Court
heard this appeal and the two cross-appeals. I allowed the appeal and
dismissed the cross-appeals. I indicated then that I would give the reasons
for my judgment today 18-03 -2008.
I now do so.
On 26-01-2007, the appellant
Rt. Hon. Chibuike Amaechi, as the plaintiff, commenced his suit at the
Federal High Court, Abuja against the Independent National Electoral
Commission (INEC) (now 1st Respondent) as the defendant. Later
the appellant sought and was granted leave to join, as second and third
defendants respectively, Celestine Omehia (now 2nd Respondent)
and Peoples Democratic Party (now 3rd Respondent). I intend
hereafter to refer to the plaintiff/appellant as Amaechi and the 1st,
2nd and 3rd defendants/respondents as I.N.E.C., Omehia
and PDP respectively.
In his further amended
statement of claim, Amaechi claimed against the respondents the following
reliefs:
"i.
A declaration that the option of changing or substituting a candidate
whose name is already submitted to INEC by a political party is only
available to a political party and/or the Independent national Electoral
Commission (INEC) under the Electoral Act, 2006 only if the candidate is
disqualified by a Court Order.
ii.
A declaration that under
Section 32(5) of the Electoral Act, 2006 it is only a Court of law, by
an order that can disqualify a duly nominated candidate of a political party
whose name and particulars have been published in accordance with
Section 32(3) of the electoral Act,
2006.
iii.
A declaration that under the electoral Act, 2006, Independent
national Electoral Commission (INEC) has no power to screen, verify or
disqualify a candidate once the candidate's political party has done its own
screening and submitted the name of the Plaintiff or any candidate to the
Independent National Electoral Commission (INEC).
iv.
A declaration that the only way Independent National Electoral
Commission (INEC) can disqualify, change or substitute a duly nominate
candidate of a political party is by Court Order.
v.
A declaration that under
section 32(5) of the Electoral Act, 2006 it is only a Court of law,
after a law suit, that a candidate can be disqualify (sic) and it is only
after a candidate is disqualify (sic) by a Court order, that the Independent
National Electoral Commission (INEC) can change or substitute a duly
nominate candidate.
vi.
A declaration that there are no cogent and verifiable reasons for the
Defendant to change the name of the Plaintiff with that of the 2nd
defendant candidate of the People's Democratic Party (PDP) for the April,
13, 2007 Governorship Election in river State.
vii.
A declaration that it is unconstitutional, illegal and unlawful for
the 1st and 3rd Defendants to change the name of the
Plaintiff with that of the 2nd Defendant as the Governorship
candidate of Peoples Democratic Party (PDP) for River State in the
forthcoming Governorship Election in rivers State, after the Plaintiff has
been duly nominated and sponsored by the People's Democratic Party as its
candidate and after the 1st Defendant has accepted the nomination
and sponsorship of the Plaintiff and published the name and particulars of
the plaintiff in accordance with
section 32(3) of the Electoral Act, 2006 the 3rd defendant
having failed to give any cogent and verifiable reasons and there being no
High Court Order disqualifying the Plaintiff
viii.
An order of perpetual injunction restraining the defendants jointly
and severally by themselves, their agents, privies or assigns from changing
or substituting the name of the plaintiff as the River State Peoples
Democratic Party governorship candidate for the April, 2007 River State
Governorship election unless or until a court order is made disqualifying
the Plaintiff and or until cogent and verifiable reasons are given as
required under section 34(2) of the
Electoral Act, 2006."
In the said Further Amended
Statement of Claim, the facts pleaded by Amaechi in support of his claims
would appear to be simple and straightforward. The facts may be summarized
thus:
Amaechi, as a member of PDP,
in his quest to be the Governorship candidate of the party, in the April,
2007 elections in
INEC filed its Statement of
Defence. The cornerstone of the defence is as shown in paragraphs 3, 7 and
11 thereof which read:
"3.
In answer to Paragraph 14 of the Statement of Claim the 1st
Defendant states that the Plaintiffs Political party (the 3rd
Defendant) in exercise of its right of choice of candidate has substituted
him with Celestine Omehia and Engr. Tele Ikuru as Governorship and Deputy
Governorship candidates respectively. Exhibit A.
.....................................................................
7.
Further to Paragraph 18, the 1st Defendant states that the
indictment of the Plaintiff by the EFCC and the acceptance of the report by
the Panel set up by the Federal Government provides
cogent and verifiable reasons for the Plaintiffs substitution by his
Political party.
.....................................................................
11.
The 1st Defendant states that Parties have a right to
change or substitute their candidates up to 60 days before the elections and
that the substitution of the Plaintiff was done within the time frame for
substitution, that is, on or before 13th February, 2007."
Omehia's defence was anchored
on paragraphs 3(i), (3(iv), 3(v), 4(ii), 4(iii), 5(i) and 5(iii) of its
Statement of Defence which read:
"3(i)
the Plaintiff is not a candidate of the Peoples Democratic Party
(P.D.P.) for the gubernatorial election for
.....................................................................
3(iv)
the name of the Plaintiff was included in the list of candidates of
the 3rd Defendant for gubernatorial elections in error and
submitted to the 1st Defendant. It was this error which was
corrected by the 3rd Defendant by its letter dated 2nd
February 2007 which letter and back up documents the Plaintiff has annexed
to his Amended Statement of Claim as Annexure E.
3(v)
by the Plaintiff Annexure 'E', the Plaintiffs name erroneously
entered on the 3rd Defendants List of Gubernatorial candidates
was removed and substituted with the name of the 2nd Defendant.
.....................................................................
4(ii)
the Plaintiff has been successfully and fully substituted with the 2nd
Defendant on the 2nd day of February 2007 before the Plaintiff
sought and obtained an order of this Honourable Court on the 13th
day of February joining the 2nd and 3rd Defendants in
this case.
4(iii)
the Plaintiffs name was duly substituted with the name of the 2nd
Defendant within the time allowed by the Electoral Act 2006.
5(i)
sponsorship of any member of a political party for the purpose of
contesting election into a public office is not a guaranteed right of any
member sand that the Plaintiff has no statutory or constitutional right to
be sponsored by the 3rd Defendant as its gubernatorial candidate.
.....................................................................
5(iii)
that the decision of the 1st Defendant as it relates to
accepting as cogent and verifiable the reason given by a political party for
substituting its candidate is not open to judicial review or liable to
reversal by the court."
The defence of PDP was hinged
mainly on paragraphs 3, 4, 7 and 8 of its Statement of Defence which read:
"3.
In answer to paragraph 10 of the Statement of Claim, the 3rd
defendant avers that the Plaintiffs name was substituted for the 2nd
Defendant vide 3rd defendant's letter of 2nd
February, 2007 under the hand of the National Chairman and
National Secretary of the 3rd defendant. A copy of the said
letter addressed to the 1st defendant shall be founded upon at
the hearing of the substantive suit.
4.
Paragraph 11, 12, 13 and 14 are hereby denied. With specific
reference to paragraph 14 of the Statement of Claim, the 3rd
defendant states that plaintiffs name and that of his running mate have been
substituted for the 2nd defendant, who is the 3rd
defendant's candidate for the Rivers State Governorship election in April,
2007.
.....................................................................
7.
3rd defendant admits paragraph 27 of the Amended Statement
of Claim to the extent only that the Plaintiffs name has been substituted
but deny the assertion that there are no cogent and verifiable reasons for
the substitution.
8.
Paragraph 30 of the Amended Statement of Claim is hereby denied and
in response to the averments contained therein, the 3rd Defendant
states that it has the right to change or substitute the name of its
candidate submitted to 1st Defendant provided same is done 60
days before the period of election."
Amaechi filed replies to the
Statements of Defence filed by INEC, Omehia and PDP. The said replies, in
their substance only re-asserted the facts pleaded by Amaechi in his Further
Amended Statement of Claim earlier discussed.
The case was heard by Nyako J
of the Federal High Court on this state of pleadings. Before I proceed
further, it is helpful to identify the issues arising for determination
before the trial Judge. At the conclusion of pleadings, there was no dispute
whatsoever as to the following facts:
(1)
That Amaechi contested and won the PDP's Primaries for the
Governorship Elections in
(2)
That Omehia never took part in such Party Primaries.
(3)
That Amaechi's name was first forwarded by PDP to INEC.
(4)
That Omehia's name was later substituted for Amaechi's vide a letter
sent to INEC by PDP on 2/02/2007.
(5)
That the reason given by PDP for the substitution was 'error'.
The solitary issue of fact to
be decided on the evidence was:
Whether or not Amaechi was
indicted by E.F.C.C. as pleaded by INEC in paragraph 7 of its Statement of
Defence reproduced above.
And finally, there was the
issue of law as to whether the reason 'error' given by PDF for the
substitution of Omehia for Amaechi satisfied the requirement of law under
section 34(2) of the Electoral Act,
2006.
In her judgment on 15-3-07,
Nyako J. came to two main conclusions namely:
1.
That the reason given by PDF for substituting Omehia for Amaechi
satisfied the requirements of the Electoral Act, 2006.
2.
That the letter written by PDF to INEC on 2/02/2007, at a time
Amaechi's suit was subjudice was improper. The letter was set aside.
Dissatisfied, Amaechi brought
an appeal against the judgment of Nyako J, before the Court of Appeal,
Some occurrences which I
consider important took place during the pendency of the appeal and
cross-appeals mentioned above before the court below. These
occurrences, have important bearing on this case.
I set them out hereunder. I should discuss them later for their effect:
PDP also conducted its
Primaries for its Governorship candidate of
And finally, there was the
issue of law as to whether the reason 'error' given by PDP for the
substitution of Omehia for Amaechi satisfied the requirement of law under
section 34(2) of the Electoral Act,
2006.
In her judgment on 15-3-07,
Nyako J. came to two main conclusions namely:
1.
That the reason given by PDP for substituting Omehia for Amaechi
satisfied the requirements of the Electoral Act, 2006.
2.
That the letter written by PDP to INEC on 2/02/2007, at a time
Amaechi's suit was subjudice was improper. The letter was set aside.
Dissatisfied, Amaechi brought
an appeal against the judgment of Nyako J, before the Court of Appeal,
Some occurrences which I
consider important took place during the pendency of the appeal and
cross-appeals mentioned above before the court below. These
occurrences, have important bearing on this case.
I set them out hereunder. I should discuss them later for their effect:
PDP also conducted its
Primaries for its Governorship candidate of
The court below, in its
judgment in the Araraume case on 5-4-2007 held that the reason 'error' did
not satisfy the requirements of Section 34 of the Electoral Act, 2006. The
respondents before the court below in the Araraume case brought an appeal
before this court. It is noteworthy that the parties and the court below
were ad idem on the view that the decision by this Court in the
Araraume case would be accepted by them in the Amaechi case. At page 373 of
the record, Adekeye J.C.A. (presiding) stated in her record thus:
"Court:
It is the decision of this court and going by the doctrine of
stare decisis -judicial precedent that wet waist (sic) for the judgment
of the Supreme Court on Section 34 of the Electoral Act — since that
decision shall be law and applicability shall be binding on the parties '
particularly political parties (and) INEC. This Court shall also base other
decision on any appeal involving section 34 on the decision of the Supreme
Court. This appeal shall be adjourned to the 11th of April 2007."
Now, on 5/4/07, this Court
affirmed the judgment of the Court of Appeal in the Araraume case. We came
to the conclusion that the reason 'error' did not satisfy' the requirements
of Section 34(2) of the Electoral Act;
and that Araraume remained the candidate of the P.D.P. for the April 14 Imo
State Governorship elections. In reaction to the judgment, the P.D.P., on
10-4-07, expelled both Araraume and Amaechi from the party. When later,
Amaechi's appeal came before the court below for hearing on 11/04/2007,
P.D.P. and I.N.E.C. asked that the appeal be struck out on the ground that
the court below no longer had the jurisdiction to hear the appeal, as a
result of the expulsion of Amaechi from the P.D.P. The court below granted
the prayers of I.N.E.C. and P.D.P. It struck out the appeal filed by Amaechi.
Amaechi was dissatisfied with
the ruling of the court below which struck out his appeal. The full panel of
this Court on 11/5/07 heard the appeal. In a short but expressive judgment,
this court, per Katsina-Alu, J.S.C. who presided said:
"Having heard all the
arguments of learned counsel on all sides,
I hold that the court of
Appeal was in error in declining jurisdiction to hear the appeal and
cross-appeal on the merit.
It is now ordered that the matter be remitted to the Court of Appeal,
(Italics
mine)
On 21-05-2007, Omehia brought
an application before the court below couched in these words:
"1.
An order of this Honourable Court staying further proceedings in this
appeal (just remitted for hearing by order of the Superme Court dated the 11th
of May 2007) pending the delivery of the full judgment which will provide
the basis of the determination of the appeal by way of reasons for the
judgment (as was announced by Hon. Mr. Justice A. I. Katsina-Alu (presiding)
in open court).
Alternatively
2.
An order of this Honourable Court staying further proceedings in this
appeal, particularly the hearing of the appeal until the Supreme Court is
approached by any of the parties to apply the provisions of Order 8 Rule 16
to the effect that the pronouncement of Katsina-Alu, J.S.C. made in open
court that reasons for the judgment will be provided at a later date, which
pronouncement was not reflected in the certified copy of the proceedings of
11th of May 2007 be reflected in the said judgment."
The court below heard Omehia's
application which, at the hearing was supported by both INEC and P.D.P. On
21-05-2007 when the said application was filed, the Governorship elections
for
''1.
The proceedings in this appeal, particularly the hearing of the
appeal is hereby stayed until the Supreme Court is approached by the
respondent/applicant to apply the provisions of Order 8 rule 16 to correct
clerical error (if any) in her judgment to the effect that the
pronouncement made in open court that reasons for the judgment will be
provided at a later date which pronouncement was not reflected in the
certified copy of proceedings of 11th of May 2007 be reflected in
the said judgment.
2.
The respondent/applicant is ordered to file his application at the
Supreme Court within seven days from today."
It should not escape attention
here that the 7 days allowed to Omehia on 25-5-2007 by the Court below would
in effect ensure that he would have been sworn in as Governor of Rivers
State on 29-05-2007 before the said application was brought.
Once again Amaechi was driven
into bringing yet another appeal before this Court against the order of the
court below which on 25-05-2007 stayed i, proceedings in his appeal. This
Court needed to make a repeat order on 10-07-2007 that the appeal be heard
expeditiously by the court below. The court below finally heard the appeal
on 16-07-2005. This was after Omehia had been sworn in as Rivers State
Governor on 29-05-2007.
It is desirable for clarity
that I set out sequentially the events which stalled the hearing of the
appeal filed by Amaechi before the 14th April Governorship
elections in
1.
The court below had on 4-04-2007 stated that in the consideration of
Amaechi's appeal it would be bound by the judgment of this Court in the
Ararume appeal.
2.
This court on 5-04-2007 affirmed the judgment of the Court of Appeal
to the effect that the reason 'error' did not satisfy the requirements of
Section 34(2) of the Electoral Act,
2006 for the substitution of one candidate with another.
3.
On 5-04-2007 when this Court gave its
judgment in the Araraurne case, the elections ere still nine days away.
4.
The P.D.P. on 10-04-2007 published a notice expelling both Araraume
and Amaechi from the party in reaction to the judgment given by this Court
on 5-04-2007.
5.
Omehia and P.D.P. on 11-04-2007, three days to the election brought
an application that Amaechi's appeal be struck out following his expulsion
from the party.
6.
On 16-04-2007, two days after the Governorship election, the court
below struck put Amaechi's appeal.
7.
On 11-5-2007, this Court in its judgment on Amaechi's appeal against
the order of the Court below which struck out his appeal ordered that the
said appeal be heard expeditiously.
It is desirable for clarity
that I set out sequentially the events which stalled the hearing of the
appeal filed by Amaechi before the 14th April Governorship
elections in
1.
The court below had on 4-04-2007 stated that in the consideration of
Amaechi's appeal it would be bound by the judgment of this Court in the
Ararume appeal.
2.
This court on 5-04-2007 affirmed the judgment of the Court of Appeal
to the effect that the reason 'error' did not satisfy the requirements of
Section 34(2) of the Electoral Act,
2006 for the substitution of one candidate with another.
3.
On 5-04-2007 when this Court gave its
judgment in the Araraume case, the elections ere still nine days away.
4.
The P.D.P. on 10-04-2007 published a notice expelling both Araraume
and Amaechi from the party in reaction to the judgment given by this Court
on 5-04-2007.
5.
Omehia and P.D.P. on 11-04-2007, three days to the election brought
an application that Amaechi's appeal be struck out following his expulsion
from the party.
6.
On 16-04-2007, two days after the Governorship election, the court
below struck put Amaechi's appeal.
7.
On 11-5-2007, this Court in its judgment on Amaechi's appeal against
the order of the Court below which struck out his appeal ordered that the
said appeal be heard expeditiously.
8.
On 21-05-2007, Omehia brought an application that the hearing of
Amaechi's appeal be stayed until this Court made further clarification of
its judgment given on 11-05-2007.
9.
On 25-05-07, four days to the swearing-in of Omehia as Governor of
Rivers State, the court below made an order staying proceedings in the
appeal of Arnaechi before it and granted Omehia seven days to bring before
this Court an application for the clarification of the judgment given by
this Court on 11-05-2007.
10.
On 10-07-2007, this Court re-affirmed the order it had previously
made on 11-05-2007 that the appeal by Amaechi and the cross-appeals by P.D.P
and Omehia be heard on the merit.
11.
On 16-07-2007 the court below finally heard Amaechi's appeal.
The judgment of the court
below against which Amaechi brought this appeal was given on 20-07-2007. In
the said judgment, the court below reached the following conclusions:
1.
That the facts in the Amaechi's case were distinguishable from those
in the Araraume case arising from the fact of Amaechi's indictment as
pleaded by 1NEC in paragraph 7 of its Statement of Defence.
2.
That Amaechi's name was properly substituted with that of Omehia.
That the
cross-appeal was partially meritorious.
Dissatisfied with the judgment
of the court below, Amaechi has brought a final appeal before this court.
Omehia and P.D.P. also filed cross-appeals.
The issues formulated for
determination in Amaechi's appeal are these:
"(1)
Whether the Court of appeal was not in
error in allowing fresh evidence on appeal when no exceptional circumstance
was shown to warrant such admission?
(2)
Whether having regard to the undertaking before the court, the court
below ought not to have followed the decision of the Supreme Court in
Ugwu v. Ararume
(supra)?
(3)
Whether there exists cogent and verifiable reason to warrant the
substitution of Plaintiff s name with that of any other person in breach of
Section 34 of the Electoral Act, 2006
and if not whether the .
r purported
substitution of Plaintiff s name is not null and void?
(4)
Whether I.N.E.C. (1st
respondent) can rely on extraneous fact or any fact not presented by a
political party seeking substitution to verify reason given seeking
substitution.
(5)
Whether there was in existence an Indictment of the plaintiff for
same to be used as a basis to verify the reason of error given by the 3rd
respondent for seeking substitution of Plaintiff s name.
(6)
Whether having regard to the concept of lis pendens and the
fact that at the material time of the election, plaintiff being the only
lawful candidate of the People's Democratic Party, he ought not to be
declared the winner of 14th April, 2007 general election in
Rivers State."
The 1st
respondent's issues are aptly captured by appellant's issues reproduced
above. The 2nd respondent's issues for determination raise
matters which were not covered by appellant's issues. These are numbered 19,
20 and 22 on pages 13 and 14 of 2nd respondent's brief. The said
issues read:
"19.
Granted that this Honourable Court has affirmed the justiciability of
Section 34 of the Electoral Act
in Ugwu
v.
Ararume (supra), which the court below has
followed in this instant appeal, assuming but not conceding that there has
been a breach of section 34 of the
Electoral Act) are there limits to the remedies (if any) available to
the plaintiff/ appellant? (Issue No. 3).
20.
Whether the entire appeal is not academic or overtaken by events as a
result of a combination of events, to wit, the unchallenged dismissal of the
appellant from the fold of the PDF, the fact that the elections in issue
have been held in which several other political parties participated, the
declaration of the 2nd respondent as winner of the said
Governorship election and his being sworn in, the existence of appellant's
election petition and other petitions in the Rivers State Governorship
Election Tribunal? (Issue No. 4).
22.
Whether the appellant's exercise of his access to court in the
challenge of alleged breaches of perceived rights in any way derogates from
the constitutional power given to 1st respondent to conduct
elections under the 1999 Constitution and the Electoral Act and if so
whether the Supreme Court can at this point in time venture into a
declaration of who is the winner of the Governorship election in rivers
State? (Issue No. 6).
The 3rd
respondent's issues are covered by appellant's issues. It is not therefore
necessary to reproduce them.
I observed earlier, that
Omehia filed a cross-appeal. The issues formulated from the grounds of
cross-appeal are these:
"Whether
the Court of Appeal was correct when it held that the appeal in issue did
not abate upon the 2nd respondent being sworn in as the Governor
of Rivers State whereupon he acquires constitutional immunity pursuant to
Section 308 of the 1999 Constitution.
Whether the Court of Appeal
was correct in law when after finding that the entire gamut of appellant's
dispute arose from nomination and sponsorship (matter within the domestic
sphere of the 3rd respondent) it did not rule the entire dispute
non-justiciable."
Whether the proceedings were
void ab initio on the basis that evidence viva voce was not
taken in a suit commenced by writs of summons/Statement of claim in respect
of reliefs that were all declaratory in nature?
The P.D.P. formulated one
issue from its cross-appeal. That issue reads:
"Whether the court below was
right in law to hold that the appeal before it was an election related
matter and having so held went further to hold that the second respondent
was not entitled to enjoy the benefits of the immunity conferred on him by
virtue of Section 308 of the Constitution of the Federal Republic of
Nigeria, 1999 having taken the oath of office and the oath of allegiance as
the Governor of Rivers State and placing reliance on the cases of A.D.
Fayose (2004) 8 NWLR
(Pt.876) P.639
and Obih v. Mbakwe [1984] 1
SCNLR 192 to arrive at
this conclusion"
I.N.E.C. and Omehia have
raised some preliminary objections to the appeal.
The grounds of the preliminary
objection raised by I.N.E.C. are these:
"1.
The 1st Respondent submits that the Appellant in his brief
failed to specifically relate the issues to the grounds of appeal and
consequently this Court is urged to discountenance the issues argued in the
Appellant's Brief.
2.
The (sic) 1st Respondent objects to and this Court is
further urged to discountenance all arguments in the Appellant's brief on
vested right or interest at pages 32 Para. 5.26 and
page 33 of the brief which are not covered by any ground of Appeal and ought
to be discountenanced.
3.
The 1st Respondent further objects to Ground 2 of the
Grounds of Appeal as being incompetent, by virtue of the provisions of
Part IX Section 140(1), 2(a) - (b) of
the Electoral Act 2006. The Supreme Court is without power and has not
jurisdiction to declare the Appellant as winner of the
4.
The 1st Respondent further objects to Ground 2 of the
Grounds of Appeal in that the Appellant did not claim such relief in his
Amended Statement of Claim set out at pages 65 to 70 of the Record but more
particularly at pages 68 to 70 of the Record.
5.
The 1st Respondent further objects to Ground 2 of the
Grounds of Appeal, as not arising from the Judgment of the Court of Appeal
delivered on 20/7/2007, subject matter of this Appeal and no special
circumstances having been shown to warrant such exercise which in any event,
neither the Court below nor of this court possesses the requisite
jurisdiction to adjudicate upon same."
Omehia's preliminary
objections read thus:
"(a)
The dispute raised by this appeal concerns who becomes the Governor
of Rivers State as sponsored by the 3rd Respondent (Peoples
Democratic Party) a situation in respect of which elections have been held
on the 14th of April 2007 and the 2nd respondent
issued with a certificate of return having won the said election,
consequently this Honourable Court and all other courts (except those
expressly vested with jurisdiction by the Constitution and the Electoral
Act) lack jurisdiction to invalidate the return or do anything capable of
questioning the said election and return pursuant to
section 140-(1) of the Electoral Act
2006.
(b)
This Honourable Court lacks jurisdiction to entertain appeal from the
subject matter of the original proceedings based on the combined effect of
section 285-(2), 246-(1) (ii) and 233
of the 1999 Constitution, being a post election matter in respect of a
Governorship seat the issue now turns on whether the 2nd
respondent was validly elected into the said office or not.
(c)
The issue(s) contained in the 15 grounds of appeal relate to academic
and hypothetical matters rendered so by the expulsion of the appellant from
the fold of the PDP, the conduct of elections and declaration of results
consequently the matters upon which this Honourable Court is called upon to
adjudicate are not live issues.
(d)
The relief sought by the appellant in the notice of appeal are
fatally flawed in that they are reliefs which suggest that the Supreme Court
can hear an appeal in respect of a matter in which jurisdiction is solely
vested in the election tribunal."
It seems to me that I need
respond at this stage to only the 1st ground of objection raised
by Independent National Electoral Commission (INEC).
In essence, Independent National Electoral Commission (INEC) is
dissatisfied with the issue raised by Amaechi concerning the consideration
of the nature of the reliefs which this Court ought to grant should the
appeal succeed. All the four
other grounds of preliminary objection by Independent National Electoral
Commission (INEC) would appear to be a fall-out of whether or not this Court
should declare Amaechi the Governor of Rivers State.
Omehia's objection would also appear to dwell on the same point.
I think it is appropriate that I first determine the fate of the
appeal before discussing the appropriate relief to grant in the event the
appeal succeeds.
The central issue to be
decided in this appeal is whether or not the two courts below wefe correct
in their conclusion that the reason given by the Peoples Democratic Party
(P.D.P) for substituting Amaechi with Omehia satisfied the requirements of
section 34 of the Electoral Act, 2006.
The said section provides:
"34(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 (1) of this section."
Now, it is not in dispute that
in the PDF primaries for the Governorship elections in
On 14 - 12 - 2006, P.O.P. in
an apparent deference to the results of its party primaries sent the name of
Amaechi to Independent National Electoral Commission INEC as its candidate
for the governorship elections in
"February 2, 2007
Prof. Maurice Iwu,
Chairman,
INEC,
Re: Forwarding of PDF
Governorship Candidate and Deputy -
This is to confirm that
Celestine Ngozichim Omehia and Engineer Tele Ikuru are PDP Governorship and
Deputy Governorship Candidates for
Barrister Celestine Ngozichim
Omehia substitutes Hon. Rotimi Amaechi whose name was submitted in error.
This is for your necessary
action.
I observed earlier that Amaechi's case was that Omehia did not contest as a candidate in the P.D.P primaries. The question that arises is - what 'error' made possible for a non-candidate at PDP primaries to be named the P.D.P. candidate ii the place of eight candidates who contested and of whom Amaechi came first |