Charles Chiwendu Odedo V. Independent National Electoral Commission & Anor (2008)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This is another political matter involving substitution; a new trend in Nigerian politics where the game is changed midstream. It affects the political party of the Peoples Democratic Party, the 2nd respondent. The quarrel looks more of an in house affair; the inclusion of the 1st respondent notwithstanding. We have done a few in the past; we are asked to do this also. We must. The matter involves so much of the interpretation of the Electoral Act, 2006. What are the facts What gave rise to the substitution

Charles Chiwendu Odedo, the appellant, a member of the Peoples Democratic Party bearing the acronym, PDP, contested the primary elections, along with ten others. That was on 24th November, 2006. It was for the Idemili North and South Federal Constituency in Anambra State. He won. Following the result of the election, the PDP submitted his name to the Independent National Electoral Commission INEC), the 1st respondent. That was on 20th December, 2006. INEC duly published the name of the appellant as a person who was cleared to contest the election. The necessary documentation was completed by INEC and the appellant thought the coast was free or clear for him to contest the election with other political parties. But that was not to be. He had a surprise. I think he also had a shock.

On or about 2nd February, 2007, appellant got information that his name was substituted with that of Obinna Chidioka who appears in this appeal as party to be heard. I must confess that this is quite a new one to me. I have never come across such a party in our law of procedure. We learn everyday. I will not go there because the parties do not seem to have Joined issue on it. And so let Obinna Chidioka remain as party to be heard and we must hear him. We will not hear him alone; we must hear all the other parties, though they are not styled as parties to be heard. As I said, we learn everyday.

Aggrieved, appellant went to the Federal High Court. He did not file the usual action. He filed an unusual one. It was an application for judicial review of the action of the respondents in relation to the substitution of his name with that of Obinna Chidioka. The process is at page 39 of the Record. It reads in part:

“Take notice that pursuant to leave of the Federal High Court Enugu, granted on the 13th day Of March 2007, ,the Federal High Court will be moved on Monday the 19th day of March 2007 at the hour of 9 o clock in the forenoon or so soon, thereafter as the Applicant or counsel on his behalf may be heard praying the honorable court for an order for judicial review of the act of independent national electoral commission for the reliefs set out in the statement in support of the application and on the grounds set out in both the statement and the verifying affidavit in support of the application and the Exhibits therein referred to, used in the application for leave, copies of which affidavit and Exhibits are served herewith.”

The appellant sought four reliefs. They are:

1. A declaration that the 2nd respondent having submitted a list of PDP candidates, it proposes, to sponsor at the 2007 elections into the House of Representatives for Anambra State Federal Constituencies to the 1st respondent. Pursuant to section 32 of the Electoral Act 2006, a substitution of the Applicants name on the said list with that of Obinna Chidioka after the 20th Feb, 2007, is unconstitutional, null and void, the same not being in compliance with sections 34 (1), (2) and (3) of the Electoral Act, 2006.
2. An order of prohibition restraining the 1st respondent from using the substituted list of PDP candidates for elections into the Federal House of Representatives in Idemili North and South Federal Constituency.
3. An order of prohibition restraining the first Respondent from publishing the said substituted list which was published after the 20th of Feb, 2007, or any other substituted list bearing the name of Obinna Chidioka or any other name in place of the Applicants name as the PDP candidate for Idemili North and South Federal Constituency pursuant to Section 35 of the Electoral Act 2006.
4. An order of mandamus directing the 1st Respondent to publish a statement of the full names of PDP candidates standing nominated for elections into the Federal House of Representatives for the Federal Constituencies in Anambra State as submitted to it by the 2nd Respondent on 23rd December 2006 in accordance with section 30 of the Electoral Act, 2006.

The grounds upon which the reliefs were sought are at pages 42 to 44 of the Record. They number 21. The affidavit in support of the application for leave to apply for judicial review is at pages 45 to 46 of the Record. There are five paragraphs.

The learned trial judge, Faji, J, did not see his way clear in granting the reliefs sought by the appellant. He refused them. In the concluding paragraph of his judgment, the trial Judge said at page 314 of the Record:

“To my mind, this constitutes a cogent reason. It is also verifiable as per plaintiff’s exhibit 5 which at all material times was in the custody of the 1st Defendant. I therefore find that the plaintiffs action lacks merit. The substitution was carried out in line with section 34 of the Electoral Act. The reliefs in the motion cannot therefore be granted. They are accordingly dismissed.”

Dissatisfied, the appellant went to the Court of Appeal. There was a split decision of the panel of Mikailu, Denton West and Bada, JJ.CA. While Mikailu and Bada, JJ.CA struck out the appeal on the ground that it was a mere academic exercise, Denton-West, JCA parted ways with her learned brothers. She allowed the appeal and struck out the cross appeal.

In his conclusion Mikailu, JCA said at page 562 of the Record:

“In the final conclusion, it is clear in view of the above that the appeal now pending has become an academic exercise in view of the fact that the election was already conducted and an election tribunal which is in the appropriate venue, having been set up. Consequently the appeal is struck out as a mere academic exercise.”

In her lone voice, Denton- West, JCA said at page 610 of the Record: