(2007) 1 All N.L.R. 354
Oguntade, JSC (Delivered the Leading Judgment):- On 25 October 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 January 2008. I now do so.
On 26 January 2007, the appellant Rt. Honourable Chibuike Amaechi, as the plaintiff, commenced his suit at the Federal High Court, Abuja against the Independent National Electoral Commission ("INEC") (now the first respondent) as the defendant. Later the appellant sought and was granted leave to join, as second and third defendants respectively, Celestine Omehia (now second respondent) and Peoples Democratic Party (now third respondent). I intend hereafter to refer to the plaintiff/appellant as Amaechi and the first, second and third defendants/respondents as INEC, 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 nominated 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 nominated 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 second defendant candidate of the People's Democratic Party ('PDP') for the 13 April 2007 Governorship Election in Rivers State.
vii. A declaration that it is unconstitutional, illegal and unlawful for the first and third defendants to change the name of the plaintiff with that of the second defendant as the Governorship candidate of Peoples Democratic Party ('PDP') for Rivers 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 first 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 third 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 Rivers State Peoples Democratic Party governorship candidate for the April 2007 Rivers 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 summarised thus:-
Amaechi, as a member of PDP, in his quest to be the Governorship candidate of the party, in the April 2007 elections in Rivers State, contested the Party Primaries against seven other members of the PDP. They competed for a total of 6,575 votes. Amaechi had 6,527 votes to emerge the winner. Omehia was not one of the candidates at the PDP Primaries. The PDP submitted Amaechi's name to INEC as its Governorship candidate. No court of law subsequently made an order disqualifying Amaechi from contesting the Governorship elections. PDP however substituted Omehia's name for Amaechi's without giving cogent and verifiable reason for the substitution as required by the Electoral Act, 2006. Amaechi therefore brought his suit claiming as earlier stated above.
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 first defendant states that the plaintiff's Political party (the third 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 first 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 plaintiff's substitution by his Political party.
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 (PDP) for the gubernatorial election for Rivers State scheduled to hold in April 2007.
. . .
3 (iv) the name of the plaintiff was included in the list of candidates of the third defendant for gubernatorial elections in error and submitted to the first defendant. It was this error which was corrected by the third defendant by its letter dated 2 February 2007 which letter and back-up documents the plaintiff has annexed to his Amended Statement of Claim as Annexure E.
Page 371 of (2007) 1 All N.L.R. 354
3 (v) by the plaintiff Annexure 'E', the plaintiff's name erroneously entered on the third defendants List of Gubernatorial candidates was removed and substituted with the name of the second defendant.
. . .
4 (ii) the plaintiff has been successfully and fully substituted with the second defendant on the 2 February 2007 before the plaintiff sought and obtained an order of this Honourable Court on the 13 February joining the second and third defendants in this case.
4 (iii) the plaintiff's name was duly substituted with the name of the second 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 and that the plaintiff has no statutory or constitutional right to be sponsored by the third defendant as its gubernatorial candidate.
. . .
5 (iii) that the decision of the first 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 third defendant avers that the plaintiff's name was substituted for the second defendant vide third defendant's letter of 2 February, 2007 under the hand of the National Chairman and National Secretary of the third defendant. A copy of the said letter addressed to the first 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 third defendant states that plaintiff's name and that of his running mate have been substituted for the second defendant, who is the third defendant's candidate for the Rivers State Governorship election in April 2007.
. . .
7. Third defendant admits paragraph 27 of the Amended Statement of Claim to the extent only that the plaintiff's 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 third defendant states that it has the right to change or substitute the name of its candidate submitted to first 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 reasserted 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 Rivers State. (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 February 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 EFCC 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 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 March 2007, 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 February 2007, at a time Amaechi's suit was sub judice was improper. The letter was set aside.
Dissatisfied, Amaechi brought an appeal against the judgment of Nyako J before the Court of Appeal, Abuja (hereinafter referred to as 'the court below'). Each of PDP and Omehia filed cross appeals on 22 March 2007 and 28 March 2007 respectively.
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 Imo State. One Senator Araraume won the Primaries. He was later substituted with one Engineer Ugwu who contested the Primaries but had been placed 16th. The reason given by PDP for the substitution was "error" as in the current case. Araraume brought a suit challenging his substitution. The High Court dismissed his case. He brought an appeal before the court below. The Araraume's appeal and the Amaechi's appeal happened to be before the court below at the same time. The court below, in its judgment in the Araraume case on 5 April 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, JCA (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 11 April 2007."
Now, on 5 April 2007, 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 PDP for the 14 April Imo State Governorship elections. In reaction to the judgment, the PDP, on 10 April 2007, expelled both Araraume and Amaechi from the party. When later, Amaechi's appeal came before the court below for hearing on 11 April 2007, PDP and INEC 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 PDP. The court below granted the prayers of INEC and PDP. 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 May 2007 heard the appeal. In a short but expressive judgment, this Court, per Katsina-Alu, JSC 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, Abuja to hear the two appeals expeditiously." (Italics mine.)
On 21 May 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 Supreme Court dated the 11 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 Honourable 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 correct the clerical error in her judgment to the effect that the pronouncement of Katsina-Alu JSC 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 11 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 PDP. On 21 May 2007 when the said application was filed, the Governorship elections for Rivers State had been concluded and Omehia declared the Governor elect. However, his swearing-in as Governor was not to come until 29 May 2007. The court below on 25 May 2007 in its ruling per R.D. Mohammed, JCA (presiding) concluded in these words:-
"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 May 2007 by the Court below would in effect ensure that he would have been sworn in as Governor of Rivers State on 29 May 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 May 2007 stayed proceedings in his appeal. This Court needed to make a repeat order on 10 July 2007 that the appeal be heard expeditiously by the court below. The court below finally heard the appeal on 16 July 2005. This was after Omehia had been sworn in as Rivers State Governor on 29 May 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 14 April Governorship elections in Rivers State and ultimately before Omehia was sworn in as Governor on 29 May 2007.
1. The court below had on 4 April 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 April 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 April 2007 when this Court gave its judgment in the Araraume case, the elections were still nine days away.
4. The PDP on 10 April 2007 published a notice expelling both Araraume and Amaechi from the party in reaction to the judgment given by this Court on 5 April 2007.
5. Omehia and PDP on 11 April 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 April 2007, two days after the Governorship election, the court below struck out Amaechi's appeal.
7. On 11 May 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 May 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 May 2007.
9. On 25 May 2007, 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 Amaechi 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 May 2007.
10. On 10 July 2007, this Court reaffirmed the order it had previously made on 11 May 2007 that the appeal by Amaechi and the cross appeals by PDP and Omehia be heard on the merit.
11. On 16 July 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 July 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 INEC in paragraph 7 of its Statement of Defence.
2. That Amaechi's name was properly substituted with that of Omehia.
3. 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 PDP 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 purported substitution of plaintiff's name is not null and void?
(4) Whether INEC (first 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 third 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 14 April 2007 general election in Rivers State?"
The first respondent's issues are aptly captured by appellant's issues reproduced above. The second 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 second 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 PDP, the fact that the elections in issue have been held in which several other political parties participated, the declaration of the second 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 first 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 third 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 second 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 third 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 PDP 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 (Part 876) 639 and Obih v Mbakwe (1984) 1 SCNLR 192 to arrive at this conclusion."
INEC and Omehia have raised some preliminary objections to the appeal.
The grounds of the preliminary objection raised by INEC are these:-
"1. The first 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) first 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 first 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 Rivers State governorship election held on 14 April 2007. In the same vein, the Court of Appeal sitting as a regular court is without power and had no jurisdiction to declare the appellant winner of the said election. Also, the above submission is re-enforced by the provisions of section 285(2) of the Constitution of the Federal Republic of Nigeria 1999 which provides thus:-
4. The first 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 first 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 July 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 third respondent (Peoples Democratic Party) a situation in respect of which elections have been held on the 14 April 2007 and the second 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 second 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 first 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 were correct in their conclusion that the reason given by the Peoples Democratic Party (PDP) 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 PDP Primaries for the Governorship elections in Rivers State, Amaechi had 6,527 votes to emerge the winner. The individual who came second in the Primaries was Senator Mart