Hon. Dr. Okechukwu Udeh V. Barrister Handel Okoli (2009)

LAWGLOBAL HUB Lead Judgment Report

S. N ONNOGHEN, JSC

This is an appeal against the judgment of the Court of Appeal Holden at Abuja in Appeal NO.CA/A/102/2007 delivered on the 4th day of June, 2007 allowing the appeal of the present 1st respondent against the judgment of the Federal High Court, Holden at Abuja in Suit NO. FHC/ABJ/CS/188/2007 delivered on the 19th day of April, 2007.

The appellant, as plaintiff, instituted Suit NO. FHC/ABJ/CS/188/07 at the Federal High Court Holden at Abuja by way of writ of summons claiming the following reliefs against the defendants/respondents jointly and severally: –

“1. Declaration that the option of changing or substituting a candidate whose name is already submitted to the 1st defendant INEC by a political party is only available to a political party and/or INEC under the Electoral Act, 2006 if the candidate is disqualified by a court order.

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.

Declaration that there are no cogent and verifiable reasons for the 1st and 2nd defendants to change the name of the plaintiff with that of the 2nd defendant as the candidate of the People’s Democratic Party (PDP) for the April 21st, 2007 election into the Federal House of Representative for Orumba North/South Federal constituency in Anambra State.

Declaration that it is unconstitutional illegal and unlawful for the 1st and 2nd defendants to change the names of the plaintiff with that of the 2nd defendant as the Federal House of Representatives candidate of the People Democratic Party (PDP) for Anambra State in the forth coming National Assembly Election in Anambra 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 with a cleared certificate issued by the 3rd defendant 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.

Declaration that the decision to substitute or the substitution of the name of the plaintiff who has acquired a vested right and without being afforded a hearing before the decision to substitute his name is null and void for violating the provision of section 36 of the 1999 constitution which guarantees the plaintiff’s right to fair hearing.

An order setting aside the purported steps taken by the 1st and 3rd defendants purporting to substitute the name of the plaintiff with that of the defendant as the candidate of the People’s Democratic Party (PDP) for the April, 21st 2007 general election into the Federal House of Representatives for Orumba North and South Federal Constituency in Anambra State.

An order for mandatory injunction compelling the 1st defendant, its agents, privies or howsoever called to recognize the plaintiff as the candidate of the Peoples Democratic Party for the April 21st, 2007 General Election into the Federal House of Representatives for Orumba North and South Federal Constituency in Anambra State.

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 Anambra State Peoples Democratic Party National Assembly candidate for the April, 2007 Anambra State Federal House of Representatives 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.

The 2nd defendant counter claimed against the plaintiff/appellant in the following terms:-

(a) A declaration that having been indicted by a judicial panel and such indictment having been re-accepted by Anambra State House of Assembly who impeached him the plaintiff/1st defendant is not qualified to contest the April 21st 2007 Election into the Orumba North and South Federal Constituency of Anambra State.

(b) An order restraining the INEC i.e. the 2nd defendant (in the counter claim) from accepting the plaintiff as candidate for the elections or changing the name of the counter-claimant with that of the plaintiff.

It is not disputed that the appellant emerged the winner in the primaries conducted by the People’s Democratic Party to select the candidate to be nominated and sponsored to contest the election into the Orumba North/South Federal Constituency of Anambra State. The 1st respondent in this appeal came second in the said primary election. The name of the appellant was consequently forwarded to INEC the 2nd respondent in this appeal, and published at the local government level. The publication resulted in many petitions challenging the eligibility of the appellant to contest the election. The People’s Democratic Party, 3rd respondent, investigated the substance of the petitions against the appellant which petitions were based on his activities during his tenure as Deputy Governor of Anambra State, the issues raised being his impeachment, purported pardon by the Governor of Anambra State and the subsequent annulment of the impeachment by the Anambra State House of Assembly. In view of the law suits, the 3rd respondent decided to substitute the name of the appellant with that of the 2nd respondent who, as stated earlier in this judgment, was second in the primary election, resulting in the institution of the main suit, the reliefs of which I had earlier reproduced.

In sum, while the issue in contention in the main suit is the substitution of the 2nd respondent for the appellant as candidate for the election in question, that of the counter claim remains the disqualification of the appellant to contest the said election.

In a considered judgment, the learned trial judge set aside the substitution of the appellant but held in addition that the appellant was not qualified to contest the election. Both parties were not satisfied with the judgment resulting in an appeal by the 2nd respondent and a cross appeal by the appellant. In its judgment, the lower court set aside the decision of the trial court which set aside the substitution of the appellant by the 2nd respondent in the main appeal and also set aside the order of the said court disqualifying the appellant from contesting in the election. In other words, both appeals succeeded and were allowed by the lower court.

The instant appeal however is against the decision of the lower court in the main appeal – relating to substitution of the appellant. There is however, no cross appeal by the respondents or any of them against the decision of the lower court on the cross appeal, following the withdrawal of the cross appeal at the hearing of this appeal. In other words, the appellant remained qualified to contest the election if the substitution is found not to have been validly made.

The issues for determination in this appeal, as identified by the learned senior counsel for the appellant, L. O Fagbemi Esq, SAN in the appellant’s brief filed on the 24th day of April, 2008 and adopted in argument of the appeal, are as follows:-

(1) Whether the 3rd respondent proved compliance with the mandatory provisions of the Electoral Act, 2006 in purporting to substitute or change the name of the plaintiff and whether the failure to afford the plaintiff a fair hearing before the change has not occasioned a miscarriage of justice. Grounds 1, 2, 3, and 6.

(2) Whether the 3rd respondent complied with its own guideline in purporting to substitute the name of the plaintiff/appellant and whether a breach or non-compliance with the provisions of the guidelines will not render the substitution of the plaintiff name null and void. Grounds 4 and 5.

On the other hand, Maureen Onyiuke Esq, in the 1st respondent’s brief of argument filed on the 2nd day of May, 2008 submitted the following three issues for the determination of the appeal:

“1. Whether the substitution of the appellant with the 1st Respondent as the 3rd Respondent’s candidate for the April 21st, 2007 elections into the House of Representatives for Orumba North/South Federal Constituency of Anambra State, was effected in compliance with section 34 of the Electoral Act, 2007 (sic).

Whether the right to fair hearing is available to the Appellant under the substitution referred to in paragraph (1) above, (sic)

Whether the 3rd Respondent complied with its Electoral guidelines and whether non-compliance thereof can invalidate the substitution effected under Section 34 of the Electoral Act, 2007 (sic)”.

The above issues are identical with the three issues identified for determination by O. J Nnadi Esq, learned counsel for the 2nd respondent in the 2nd respondent’s brief of argument filed on 9th May, 2008.

Before proceeding to deal with the issue(s) as formulated by learned counsel for the relevant parties, it is very necessary to observe that it would always pay us better if issues are limited really to those that are necessary for the determination of the dispute between the parties as arising from the grounds of appeal which in turn must relate to the substance of the decision by the lower court. In the instant case, the issues for determination have been unnecessarily expanded and multiplied to include those that are really not relevant having regard to the decision of the lower courts, facts and circumstance of this case.

I had earlier reproduced the reliefs sought by the appellant in the trial court. It is important to note that the court, in determining the case identified the following two issues only, one each for the main case and the counter-claim; in its judgment to be found at pages 716-720 of Vol.1 of the record of appeal; particularly at pages 716 and 717:

“I have seen the pleadings, counter affidavit and affidavit filed by all parties listened to all submission (sic) of counsel and adoption of written addresses. I find that two issues arises, (sic)

(1) Whether the plaintiff has been properly substituted in accordance with Section 34 of Electoral Act.

(2) If positive whether he has been properly fielded fiilfilly (sic) in him all requirement of the Constitution”.

In resolving the issues, the trial court concluded inter alia, thus at page 719 of the record;

“On the whole, the reliefs of the plaintiff in 1,2,3,4,5 are refused. I grant relief (sic) 6, 7 and 8 of the originating summons.

I uphold the relief A and Part of relief B of the counter claim of 2nd Defendant and relief B to the extent that 1st Defendant should be restrained from accepting the Plaintiff as a candidate for the election”.

The relevant reliefs had earlier been reproduced in this judgment. It should be noted that the present appellant did not appeal against the refusal of the trial court to grant reliefs 1,2,3,4 and 5 but cross appealed only on the grant of the reliefs in the counter claim, and submitted the following five issues for the determination of the cross appeal to wit.

“1. Whether the learned trial judge was not in serious error in granting the counter-claim of the 2nd respondent to the effect that the plaintiff/cross appellant was not qualified to contest election.

Whether the learned trial judge had jurisdiction to determine whether Anambra State Governor can lawfully pardon the plaintiff for any offence/indictment arising from impeachment when:-

(a) when such a complaint is not justiciable before the Federal High Court;

(b) there was no claim challenging the exercise of power by the Executive Governor of Anambra State and;

(c) Anambra State who is a necessary party to determine the propriety of the order was not joined.

Whether the learned trial judge evaluated the piece of evidence before him in coming to his decision on the counter-claim.

Whether the grant of reliefs 6, 7 and 8 of the claim does not automatically mean the defeat of the counter-claim, and

Whether the counter-claim is an abuse of process.

It is very obvious that the cross appeal raised no issue with regard to the refusal of the claims in question neither did the lower court decide on them.

The instant appeal is based mainly on the decision of the lower court on the main appeal which also did not challenge the decision of the trial court on the refusal to grant the said reliefs but mainly on the holding setting aside the substitution of the present 1st respondent for the appellant. It is therefore very clear that the issue or sub-issue as to “whether the failure to afford the plaintiff a fair hearing before the change has not occasioned a miscarriage of justice” as raised in issue 1 of the appellant’s brief does not arise at all and therefore, very irrelevant particularly when the trial court specifically refused to grant claim 5 which grounded the claim for fair hearing and there was no appeal against that refusal as earlier demonstrated in this judgment. In short, the substance of this appeal lies in the main issue which is and remains: whether the substitution of the appellant with the 1st respondent as the 3rd respondent’s candidate for the April 21st, 2007 election in question was in compliance with section 34 of the Electoral Act, 2006. I intend to determine this appeal solely on that issue. The other issue as to whether the substitution was in compliance with the guideline of the 3rd respondent is really of no moment as the substantive law on the issue of substitution of a candidate remains section 34 of the Electoral Act, 2006 irrespective of whatever a party’s guidelines may provide particularly when what it provides is not contrary to that law. The guidelines cannot override the provisions of the Act.

In arguing the issue, learned senior counsel for the appellant, L. O Fagbemi Esq, SAN referred to the provisions of section 34 of the Electoral Act, 2006 and submitted that a political party has the right to change its candidate for an election at least 60 (sixty) days to the election after which time, it can only effect the change when it gives cogent and verifiable reasons, except in case of death of the candidate; that the reason assigned for the change is as stated in the letter dated 19th February, 2007 – exhibit E which simply stated that the name of the appellant was submitted “without enough information” which senior counsel said is no reason, let alone cogent and verifiable reason-relying on the case of Ugwu v. Araraume: that the lower court was in error when it relied on the letter of 20/2/2007 to hold that cogent and verifiable reasons were given by the respondent when at the material time there was a judgment of a competent court of law declaring that the appellant was qualified to contest, which decision still subsists and is binding. Learned senior counsel then urged the court to resolve the issue in favour of the appellant and allow the appeal.

On the part of the 1st respondent, it is submitted by Maureen Onyiuke Esq that the 3rd respondent gave cogent and verifiable reasons for the substitution of the appellant as required by section 34 of the Electoral Act, 2006; that at the time of the substitution, there was reasonable fear and apprehension that the issue of the qualification of the appellant to contest the election may not be concluded before 20/2/2007, the last date for substitution and as such it would be risky to field him as a candidate; that the requirements of section 34 (1) and (2) of the Electoral Act, 2006 were therefore met and urged the court to resolve the issue against the appellant and dismiss the appeal.

In arguing issue 1, O. J Nnandi Esq for the 2nd respondent submitted in the 2nd respondent’s brief of argument that “the Court of Appeal is right in the decision of the court that the substitution of the appellant with the 1st respondent by the 3rd respondent was for cogent and verifiable reasons and satisfied the requirement of section 34 of the Electoral Act, 2006”; that the lower court was right in relying on the letters dated 19/2/07 and 20/2/07 in coming to that conclusion and urged the court to resolve the issue against the appellant and dismiss the appeal.

Dr. Bello Fadile for the 3rd respondent stated in the brief of argument filed on 14/10/08 that the 3rd respondent not having any particular interest in the matter abides by whatever decision this court may take on the appeal.

Section 34 of the Electoral Act, 2006, the compliance therewith or otherwise of which the issue for determination in this appeal arose provides as follows:-

“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(sixty) days to the election.

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

The question is whether the 3rd respondent in seeking to substitute the appellant with the 1st respondent gave cogent and verifiable reasons to secure the substitution. The trial court held that it did not while the lower court held that it did having regard to the contents of the letter dated 20/2/07.

There is no doubt whatsoever that for a political party seeking substitution of a candidate for an election under section 34 of the Electoral Act, 2006 to state in its application to INEC simply that the substitution is sought on the ground of insufficient information is to assign no reason whatsoever for the desired change, see Suit NO.SC/291/2007: Senator Hosea Ehinlawo v. Chief Olusola Oke & Ors decided by the court on the 27th day of June. 2008., reported (2008) 10 SCM, 28

The above is what the 3rd respondent stated in the letter of application for the substitution in question dated 19/2/07. To that extent, it is my view that the said letter of 19/2/07 – exhibit E – is ineffective in securing the substitution sought as it contained no cogent and verifiable reason for the substitution as required by section 34 (2) of the Electoral Act, 2006 supra.

Turning to the letter of 20/2/07 which the lower court held as containing the cogent and verifiable reasons for the substitution of the appellant with the 1st respondent, it is important to reproduce the letter. It states as follows:-

“Professor Maurice Iwu

Chairman,

Independent National Electoral-Commission (INEC)

Abuja.

SUBSTITUTION: PDP CANDIDATE FOR ORUMBA NORTH/SOUTH FEDERAL CONSTITUENCY. ANAMBRA STATE

Please we wish to refer to our letter dated l9th February, 2007 on the above subject matter and forward a copy of the PDP Electoral Panel’s Report which declared Barrister Handel Okoli winner of the Primaries.

The reasons supplied by the Panel has been subject of several law suits and legal opinions for which the Party is constrained to reconsider Dr. Okey Udeh’s nomination as one that is legally controversial. Further attached are:

Motion for leave to appeal against Ruling obtained by Dr. Udeh dated 19/2/07

Motion Exparte date 19/2/07

Letter date 12th February, 2007

In view of the fact that the issue of his qualification is still subjudice and that the Court may not decide the matter before the last date for substitution, the Party considers it safer and more politically expedient to substitute Dr. Okey Udeh with Barrister Handel Okoli.

This information is for your further necessary action please.

Senator Dradu A. Ali, fss, GCON

National Chairman National Secretary”

It is obvious that the primary reason for the substitution as can be gathered from the letter of 20/2/07 supra, centres on the alleged qualification of the appellant to contest the election, which issue appears to be presented therein as still being subjudice. It is however important to note that as at the 19th and 20th February, 2007, the decision of the High Court of the Federal Capital Territory, holden at Zuba in Suit NO.FCT/HC/CV/411/07 which declared in effect, that the appellant is qualified to contest the election still subsisted as it had not been set aside on any appeal. It is equally important to note that even the alleged application for leave to appeal against that judgment as indicated in the letter of 20/2/07 was dated 19/2/07 as well as a motion exparte (i.e. both are dated 19/2/07). It is therefore very clear that as at 19/2/07 or even 20/2/07 the judgment as to the qualification of the appellant to contest the election had not been set aside and it is settled law that a judgment or ruling of a court remains valid and binding on the parties until set aside by a court of competent jurisdiction. Infact, there is no evidence on record that the decision was later set aside by an appellate court.

Another aspect of the issue of non-qualification of the appellant to contest the election has to do with the counter claim filed by the 1st respondent then 2nd defendant in the suit giving rise to this further appeal. It was, as made clear earlier in this judgment, based on the same issue of disqualification of the appellant. As we already know, the trial judge did find that the appellant was disqualified leading to a cross appeal to the Court of Appeal which cross appeal was allowed by that court. Initially there was an appeal by the 1st respondent against that decision which cross appeal was withdrawn by the learned senior counsel for the 1st respondent, D. D Dodo Esq, SAN on the 10th day of December, 2008 when this appeal was heard and consequently dismissed by this court. There is therefore no appeal against the decision of the lower court on the cross appeal thereby still confirming the finding of the High Court of the Federal Capital Territory holden at Zuba that the appellant is qualified to contest the election.

It is therefore clear that from whatever angle one looks at the issue, the competent courts of law have found/held that appellant is qualified to contest the election in question and therefore any reason of disqualification of the appellant to contest the election as constituting the ground for substitution of the appellant with the 1st respondent cannot be cogent and verifiable particularly as the appellant’s qualification to contest the said election has been positively and manifestly demonstrated by the judgments of the courts; i.e. the High Court of the Federal Capital Territory, holden at Zuba and the Lower Court on the cross appeal.

It is also crucial to point out that from the records it was the appellant who won the primary election of the party which made it possible for the party to forward his name as its candidate to INEC for the election in question. The 1st respondent was second in the election. It is not that the appellant did not win the primary election- though that would not have had any impact if no cogent and verifiable reasons were given for the substitution. However, the appellant having won the primary election as a result of which the 3rd respondent decided to sponsor him as its candidate for the election and the substitution of the 1st respondent for the appellant having been found to be contrary to the provisions of section 34 of the Electoral Act, 2006, the issue under consideration is therefore resolved in favour of the appellant and the appeal allowed for being meritorious.

The judgment of the lower court as it concerns the main appeal before that court is hereby set aside and the decision of the trial court restored except the aspect relating to the counter claim which was set aside by the lower court.

In view of the nature of this case and in order to promote the spirit of reconciliation, I make no order as to costs. Appeal allowed.

SC. 153/2007