Barr. (Mrs.) Amanda Peters Pam & Anor V. Nasiru Mohammed & Anor (2008) LLJR-SC

Barr. (Mrs.) Amanda Peters Pam & Anor V. Nasiru Mohammed & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C.

The 1st respondent was the plaintiff at the Federal High Court, Abuja where he brought a claim against the appellants and the 2nd respondent as the defendants claiming the following reliefs:

“1. A Declaration that the 2nd defendant’s letter of 19th February, 2007, to the 1st defendant applying to substitute the Plaintiff Nasiru Mohammed as the 2nd defendant’s candidate for the April 2007 Abuja Municipal Area Council AMAC/BWARI Federal House of Representative Election is illegal, null, void and of no effect whatsoever.

2. A Declaration that the 1st Defendant cannot in law act upon the 2nd Defendant’s application as contained in the letter of 19th February, 2007, to effect a substitution of the plaintiff with 3rd defendant as the 2nd defendant’s candidate for the April 2007 AMAC/BWARI Federal House of Representative Election.
3. A Declaration that by virtue of the provision of section 34(2) of the Electoral Act, 2006, the letter dated 19th February, 2007, written by the 2nd defendant to the 1st defendant seeking to substitute the plaintiff’s name does not provide any cogent and verifiable reason sufficient in law to warrant a substitution of the plaintiff’s name by the 1st defendant.
4. An Order of injunction restraining the 1st defendant from acting, carrying into effect or doing anything whatsoever based on the 2nd defendant’s application for substitution as contained in the letter of 19 February, 2007, to the 1st defendant as same is illegal, null, void and of no effect whatsoever.
5. An Order setting aside anything and everything done by the 1st defendant pursuant to the letter of 19/2/07 for the 2nd Defendant to the 1st defendant.
6. An Order setting aside the substitution form purported to have been filed by the plaintiff as illegal, null, void and of no effect whatsoever.
7. An Order against the 1st defendant by itself, its agent, privies, servants or howsoever described directing a retention of the plaintiff’s name as the duly nominated candidate of the 2nd defendant for the AMAC/BWARI Federal House of Representatives.
8. An Order quashing and nullifying the purported substitution of the plaintiff by the letter dated 19th February, 2007, purporting to have been issued by the 2nd defendant.
9. An Order quashing, nullifying and setting aside the FORGED FORM CF004 A purportedly signed by the plaintiff in favour of the said Austeb Peter-Pam Amanda 1.
10. An Order affirming the plaintiff as the legitimate and bonafide candidate of the 2nd defendant for the April 2007 election into the Federal house of Representatives in respect of the Abuja Municipal Area Council/Bwari Federal Constituency.”

At the completion of hearing on 5-04-07, the trial court gave judgment in favour of the 1st respondent in accordance with the reliefs he sought from the court. Later however, the 1st appellant brought an application that the judgment given on 5-04-07 be set aside on the ground that she had not been served with the processes leading to the judgment. The 1st respondent in whose favour the judgment on 5-04-07 had been given did not oppose the application. The trial judge Tijani Abubakar J. had no difficulty in setting aside the said judgment on 18-04-07.

It needs be said here that the 1st respondents’ suit related to the National Assembly elections which were scheduled to be held on 21-04-07. It ought therefore to have been clear to the parties that the case needed to be disposed of early enough so as not to interfere with the elections to be held on 21-04-07.

The 1st respondent’s suit was heard on the same day i.e. 18-04-07 and judgment given a second time that day in favour of the 1st respondent. The earlier judgment in the case was similar in favour of the 1st respondent. The appellants were dissatisfied. They brought an appeal before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). The 1st respondent also filed a cross-appeal., on 5-07-07, the court below dismissed both the appeal and the cross-appeal. The appellants were dissatisfied with the judgment of the court below and have come before this Court on a final appeal. In their appellants’ brief, the issues for determination in the appeal were identified as the following:

“1. Whether the Court of Appeal was right in affirming that 1st respondents had locus standi to institute the suit to challenge his substitution as a candidate of the ANPP 2nd Appellant to contest the AMAC/BWARI Federal Constituency when at the time of institution of the suit i.e. March 22, 2007, he had ceased to be a member of ANPP by reason of expulsion on February 2, 2007.

2. Whether the Court of Appeal was right in holding that the 1st appellant’s right to fair hearing was not breached in the determination of the issues before the trial Court.
3. Whether originating summons was appropriate procedure in the determination of the issues raised in the suit”

The 1st respondent in his brief of argument raised three issues for determination which said issues are in substance similar to the appellants’ issues. The 2nd respondent also filed a brief of argument on 15-02-08 which we deemed properly filed at the hearing of the appeal on 4-03-08.

I intend in this judgment to consider each of the issues raised for determination in the appeal serially. The 1st issue raises the question whether or not the 1st respondent had the requisite locus standi to have commenced the suit before the trial court. It seems to me however that in the nature of the dispute brought before the trial court, the issue of 1st respondent’s locus standi was inexorably tied to the larger issue which was as to whether or not the 2nd appellant gave a cogent and verifiable reason in its letter to the 2nd respondent on 19-02-07 substituting the 1st appellant for the 1st respondent as its candidate for AMAC/BWARI Federal Constituency in the elections held on 21-04-07.

I observed earlier that the 1st respondent commenced his suit at the trial court by an originating summons. In paragraph 3(a) to.(m) of the affidavit in support of the originating summons, the 1st respondent deposed thus:

“a That the plaintiff is a Chattered Accountant with Office at No.4 Toamansina Street, off Kolda Link, off Adetokunbo Ademola Crescent, Wuse, Abuja.

b. That the plaintiff is a registered and bona fide member of the All Nigerian people’s Party, the 2nd defendant herein attached herewith is a copy of Plaintiff Party membership card marked Exhibit NAS 1.

c. By virtue of the plaintiff’s membership of the 2nd defendant, he contested the 2nd defendant’s party’s Primaries for the Abuja Municipal Area Council (AMAC)/Bwari National Assembly Elections and won, and was duly sponsored by the 2nd defendant to the 1st defendant as a House of Representative candidate for the April 2007 House of Representative Elections for the AMAC/BWARI Federal Constituency. Attached herewith is a copy of the Summary of Results for the Primary Elections 2006 is annexed herewith as exhibit NAS 2.

d. That upon the submission of Plaintiff’s name by the 2nd defendant to the 1st defendant, the 1st defendant as required by Law published his name both at its Headquarters and his constituency as the authentic candidate of the 2nd defendant for the April 2007 Federal House of Representatives Elections.

e. That upon the submission of his name to the 1st defendant by the 2nd defendant he participated in the 1st defendant’s verification exercise and was confirmed to contest the Federal House of Representatives Election for the AMAC/Bwari Federal Constituency in the forthcoming April 2007 National Assembly Elections. Copy of the Acknowledgment (Form CF 001) issued by the 1st defendant is annexed herewith as Exhibit NAS 3.

f. That surprisingly by a letter dated 19th February 2007, the 2nd defendant wrote the 1st defendant applying to Substitute the Plaintiff with the 3rd defendant (Austen Peters-Pam Amanda I.) as the 2nd defendant’s candidate for the April 2007 National Assembly Elections. A copy of the 2nd Defendant’s letter dated 19th February 2007 to the 1st Defendant is attached herewith marked exhibit NAS 4.

g. That the 2nd defendant’s application as contained in the said letter to the 1st defendant dated 19th February, 2007 gave no reason for the application to substitute the plaintiff with Austen Peters-Pam Amanda I. as the 2nd defendant’s candidate for the April 2007 National Assembly Election and notice of the purported attempt of substitution came very late to the plaintiff.

h. That he did not at any time withdraw his candidature in favour of the said Austen Peter Pam Amanda I. as he had no reason whatsoever to do so. That the signature appearing on Form CF.004A is a forgery consistent with the Scanned (instead of original) passport photograph appearing on said form. Copy of the said Form CF.004A is annexed herewith marked exhibit Forgery 1.

i. That the said letter of 19/2/07 which was signed only by the Secretary of the Party is contrary to the requirements of the 2nd defendant’s party constitution. Copy of the party Constitution is annexed herewith marked exhibit NAS 4.

j. That if effect is given to the said letter dated 19th February, 2007, it is going to cause the plaintiff severe damage mentally, physically, psychologically and financially, which no monetary compensation can assuage.

k. That pursuant to his sponsorship by the 2nd Ddfendant, plaintiff has commenced intense political campaign for he upcoming April, 2007 National Assembly Elections in the AMAC/Bwari Federal Constituency.

l. That I have been informed by D. D. Dodo, S.A.N. on the 15th Day of March, 2007 at about 7.00 p.m. at No. 10 Atbara-Street Wuse II and I very believe him that the 2nd defendant’s application as contained in the letter dated 19th February, 2007 does not meet the requirement of law for substitution of the plaintiff to contest the April 2007 National Assembly Elections under the Platform of the 2nd defendant in the AMAC/Bwari Federal Constituency.

m. That except the 1st and 2nd defendants are restrained, they will proceed to act pursuant to the application of the 2nd defendant to substitute the Plaintiff with Austen Peters-Pam Amanda 1. as the 2nd defendant’s candidate for the April 2007 National Assembly Election as contained in the said letter dated 19th February, 2007 and in the process prevent the plaintiff from contesting the April 2007 National Assembly Elections.”

It is apparent from the extracts of the affidavit in support of the originating summons reproduced above that that foundation and cornerstone of the 1st respondent’s case before the trial court was that he was the candidate of ANPP (i.e. – the 2nd appellant); and that he was validly nominated at the A.N.P.P. primaries to contest the April, 2007 election for the AMAC/Bwari Federal Constituency. It was further deposed to that by a letter dated 19-02-07, the 2nd appellant wrote to the 2nd respondent applying to substitute the 1st appellant’s name for the 1st respondent’s. The 1st respondent deposed that he remained ready and willing to be A.N.P.P. candidate for the said election and that the 2nd appellant wrongfully attempted to substitute 1st appellant for him. It is noteworthy that the 1st respondent made the point that the attempt by the 2nd appellant to substitute the 1st appellant for him did not conform with the law.

In her reaction to the 1st respondent’s affidavit, the 1st appellant in a counter-affidavit, sworn to on her behalf by one Ifeanyi M. Nrialike stated in paragraphs 5 to 8 thereof thus:

“5. That the plaintiff was expelled from the ANPP – the 2nd defendant on the 2nd of February 2007 and is not a member of the party the letter of expulsion is marked exhibit A1 and this fact was communicated to the 1st defendant.

6. That the plaintiff was duly substituted with 3rd defendant having been expelled from the All Nigeria People Party.
7. That EXHIBIT FORGERY 1- FORM CF 004A is not forged by the 3rd defendant or any other person but dully signed by the national Chairman and Secretary of the 2nd defendant. A letter to this effect written to the chairman of INEC by the chairman of ANPP FCT Abuja is marked exhibit A2.
8. That the National Secretary as the Chief scribe of the 2nd defendant in the absence of the National chairman has authority to write correspondence and letters on behalf of the 2nd defendant.”

It is obvious that the cause of the dispute between the parties was that whereas the 1st respondent claimed he was the properly nominated candidate of the 2nd appellant, the 1st appellant claimed that the 1st respondent could not be such candidate as the 1st respondent had by a letter dated 2-02-07 been expelled from the party.

In the appellants brief the contention of appellants’ counsel was that the 1st respondent had not the locus standi to bring the suit because by his expulsion from the party on 2-02-07 had lost the platform upon which to bring the suit as a member of the 2nd appellant.

In his address before the trial court 1st respondent’s counsel argued that there was no indication that the 1st respondent ever acknowledged that he got a letter dated 2-02-07 which expelled him from the 2nd respondent; and that in any case the letter by which the 2nd appellant tried to substitute the 1st appellant for the 1st respondent did not make any reference to a letter of expulsion of 1st respondent dated 2-02-07.

It seems to me that the objection made by the appellants as to the standing of the 1st respondent to bring this suit depended wholly on whose version of the evidence the trial court accepted. If, as contended by the appellants the 1st respondent had lost his membership of the 2nd respondent on 2-02-07, he would not have a platform to bring his suit on 22-03-07. But the contention of the 1st respondent was that the said letter by which he was allegedly expelled was a forgery and was never served on him.

The trial court did not make a specific funding on the point. Similarly, the court below did not express its opinion on the point as no issue of locus standi was raised before it.

It seems to me that from the nature or drift of evidence available before the trial court, it was not satisfactorily established that the 1st respondent had been expelled from the 2nd appellant by a letter dated 2-02-07. Elementary prudence and common sense dictate that if indeed the 1st respondent had been expelled from ANPP on 2-02-07, the letter allegedly written by ANPP on 19-02-07 exhibit NAS 4 ought to have given as reason for the substitution of the 1st respondent the fact that he had been expelled from the party. It is remarkable that the fact of the expulsion of the 1st respondent was never brought up anywhere until the 1st respondent had sued. It is to be expected that if in truth the 1st respondent was expelled it would have formed a valid basis to substitute his name with that of the 1st appellant. The cornerstone of the case of the 1st respondent was that he was substituted in a manner that did not conform with the law. This explains in my view why the two courts below saw no reason to examine the issue of the 1st respondent’s locus standi. This is because the issue of absence of locus standi raised by the appellants was inexorably linked with the validity of 1st respondent’s substitution when the same is viewed against the provisions of section 34(1) and (2) of the Electoral Act 2006 which 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.

34(2). Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.”

The conclusion to be arrived at is that the issue of locus standi raised by the appellants is fully subsumed under the issue whether or not the 2nd appellant gave a cogent and verifiable reason for the attempted substitution of the 1st respondent with the 1st appellant. It is noteworthy that the appellants throughout the proceedings from the trial court to this court never at any stage contended that the letter exhibit NAS 4 dated 19-02-07 by which the 1st appellant was substituted for 1st respondent gave any cogent or verifiable reason for the substitution.

In Ugwu & Anor. v. Araraume & Anor [2007] 16 S.C. (pt.1) 88, this Court considered the import and effect of Section 34 of the Electoral Act on the substitution of a candidate where no cogent reason was given for the substitution. At page 134 of the report this Court per Tobi J.S.C. said:

“Taking Section 34(2) in the con of primaries in particular, I have no doubt in my mind that the subsection is not only important but has an imperative content; considering the general object intended to be secured by the 2006 Act. It is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it likes, without any corresponding exercise of due process on the part of an aggrieved person….

If a section of a statute contains the mandatory ‘shall’ and it is so construed by, the court, then the consequence of not complying with the provision follows automatically. I do not think I sound clear. Perhaps I will be clearer by taking Section 34(2). The subsection provides that there must be cogent and verifiable reasons for the substitution on the part of the 3rd respondent. This places a burden on the 3rd respondent not only to provide reasons but such reasons must be cogent and verifiable. If no reasons are given, as in this case, not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied with and therefore interpreted against the 3rd respondent in the way I have done in this judgment. It is as simple as that. It does not need all the jurisdiction of construction of statute. I know of no canon of statutory interpretation which foists on a draftsman a drafting duty to provide for sanction in every section of a statute.”

I made the same point at pages 155 to 156 of the report where I said:

”It is manifest that the requirement under Section 34(2) of the 2006 Act that ‘cogent and verifiable reason’ be given in order to effect a change of candidate was a deliberate and poignant attempt to reverse the 2002 Act which led to a situation where disputes arose even after elections had been concluded as to which particular candidates had been put up by parties to stand elections.

The meaning of the word ‘cogent’ as given in The Shorter Oxford English Dictionary, is stated to be ‘constraining, powerful, forcible, having power to compel assent, convincing.’ The same dictionary defines ‘verifiable’ as ‘that can be verified or proved to be true, authentic, accurate or real; capable of verification.’

In the light of the above, it seems to me that the expression ‘cogent and verifiable reason’ can only mean a reason self demonstrating of its truth and which can be checked and found to be true. The truth in the reason given must be self evident and without any suggestion of untruth. The reason given must be demonstrably true on the face of it so as not to admit of any shred of uncertainty.’

I am satisfied that the reason given by PDP as ‘error’ for substituting Omehia for Amaechi did not meet the requirement of Section 34 of the Electoral Act.”

See also Amaechi v. I.N.E.C .& Ors. {2008} 1 SC. (Pt. 1) 36.

The 2nd appellant in its letter exhibit NAS 4 dated 19-02-07 wherein it purported to substitute the 1st respondent with the 1st appellant no reason whatsoever was given for the substitution. In the letter from the 2nd appellant, the writer one Senator Sa’idu Umar Kumo simply wrote:

“I am forwarding herewith details of approved substitutions in respect of the National Assembly candidates for your necessary action please.”

Clearly, the 2nd appellant did not comply with the provisions of Section 34 in substituting the 1st appellant with the 1st respondent as the candidate for the National Assembly election on 21-04-08.

The 2nd issue for determination is a complaint that the court below was in error by not holding that the 1st appellant’s right to fair hearing was compromised by the manner the trial court handled the hearing of the suit on 18-04-07. I stated earlier that the judgment previously given in favour of the 1st respondent on 5-04-07 was set aside on 18/04/07 on the ground that the appellants had not been served with the processes leading to the judgment. The proceedings of the trial court reveals that the 1st respondent’s counsel Mr. Dodo S.A.N. prayed the trial court to hear the suit immediately after the previous judgment was set aside. Mr. Nwankwo S.A.N. for the appellants however insisted that he could not be rushed as he needed time to file a counter-affidavit. The trial court granted appellants a stand-down till 11.30a.m. Mr. Nwanko S.A.N. later sought a further stand-down till 3p.m. to enable him file a counter-affidavit notwithstanding that Mr. Dodo S.A.N. had opposed a further stand-down. The trial court granted a further stand down till 1.30p.m. After the second stand-down, all the parties by their counsel made submissions to the trial judge after they had filed their respective affidavits. None of the parties was disabled from putting across to the trial court his arguments in the matter.

Can it be said that there was a denial to the appellants of their right to fair hearing I think not. I have no doubt that the proceedings before the trial court on 18/4/07 were rushed and conducted in a hurry. This was so because the elections to the National Assembly which formed the subject-matter of the suit were to be conducted on 21-04-07. In other words there was only a period of 3 days available to the parties and court to come to a determination of the matter. Given the nature of the special circumstances that prevailed, I am unable to conclude that the appellants were denied their right to fair hearing.

The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment. In the instant case, there has been no complaint that the respondents were granted advantages or special favours in the presentation of their case which were denied to the appellants. A complaint founded on a denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all the parties before it.

In Mohammed v. Kano N.A. [1968] All N.L.R. 411 at 413 (Reprint) Ademola C.J.N. considering the meaning of fair hearing said:

“It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case. We feel obliged to agree with this.”

It is wrong and improper to approach the meaning of fair hearing by placing reliance on any a priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed pre-requisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.

The court below at pages 289 to 291 of the record in its judgment examined the appellants’ complaint as to absence of fair hearing and said:

“It must be noted that the court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the sense of his appeal being granted a fair hearing or even in the court below. This is because of the need that in granting the hearing on the merits no injustice is done to the other party where that opportunity or fair hearing existed in the court below, the appellate court has no business interfering. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) page 142; Ogundoyin v. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 421.

The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit; be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audi alteran partem and nemo judex in causa sua per Onu J.S.C. at 421. See also Ndu v. State (1990) 7 NWLR (pt. 164) 550.

A party who will be affected by result of a Judicial inquiry must be given an opportunity of being heard, Otherwise, the action taken following the inquiry will be Unconstitutional and illegal. See Ogundijun v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 423 per Onu J.S.C. See also Atande v. State (1988) 3 NWLR (pt. 85) 681.

In the light of the above I have no difficulty in Resolving this issue of fair hearing or not against the Appellant. Therefore this appeal lacking in merit is hereby dismissed.”

I agree with the views expressed by the court below above. I am unable to hold that the appellants were denied their right to fair hearing as enshrined in section 36 of the 1999 Constitution.

The complaint of the appellants under their third issue is that the use of originating summons was not appropriate in the circumstances of this case. Let me consider Order 40 rules 1 and 2 of the Federal High Court (Civil Procedure Rules) 2000 which deal with the use of originating summons in proceedings at the Federal High Court from where this suit originates.

The rules Order 40 rules 1 & 2 provide:

“(1) A person claiming to be interested under a deed, will or other written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

(2) A person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of an enactment may apply by originating summons for the determination of the question of construction and for a declaration as to the right claimed.”

In the instant case, the simple question for the trial court to determine was whether or not the letter by which the 2nd appellant sought to substitute the 1st respondent with the 1st appellant was in conformity with the requirements of section 34 of the Electoral Act, 2006. This was not a case in which the truth of the relevant facts was in serious controversy. The trial court needed to determine whether or not there was cogent and verifiable reason given for the substitution of the 1st appellant for 1st respondent. In my humble opinion, this is the type of case in which the procedure of originating summons is eminently reasonable and relevant. The procedure of originating summons ought not to be used where the facts are likely to be in dispute: See Theophilus Doherty v. Richard Doherty [1968] NML.R. 241 and National Bank of Nigeria v. Ayodele Alakija [1978] 9 & 10 SC.59.

The procedure of originating summons is the appropriate one to be used in a dispute as this where what is in dispute is the simple construction or interpretation of documents in respect of which pleadings are unnecessary: See Joseph Din v. Attorney-General of the Federation [1986] 1 NWL.R (Part 17) at page 471. This issue must be resolved against the appellants.

In the final conclusion, I am of the view that this appeal has no merit. It is accordingly dismissed with N50,000.00 costs in favour of 1st respondent against the appellants.

SC.238/2007