Rt. Hon. Rotimi Chubuike Amaechi V. Independent National Electoral Commission & Ors. (2007)

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OMOLEYE, J.C.A.

The substantive appeal is against the judgment of the Federal High Court, Abuja Division delivered on the 15th day of March, 2007.

Statement of Facts

The facts of this case as can be garnered from the printed record of proceedings are that upon being screened and cleared, the appellant, Rt. Hon. Chubuike Rotimi Amaechi, contested and emerged the winner at the Governorship primaries conducted by the Peoples Democratic Party for Rivers State. At the contest, out of eight (8) aspirants, the appellant scored 6,527 of the total votes of 6,575, the other seven (7) aspirants shared the remaining 48 votes. The 2nd respondent, Mr. Celestine Omehia, did not participate in the primaries exercise and therefore was not one of the contestants. After the conclusion of the primaries, the name of the appellant was forwarded to the 1st respondent, INEC as the Governorship candidate for Rivers State by the 3rd respondent on 14th day of December, 2006 in compliance with the provisions of section 32(1) and (2) of the Electoral Act, 2006. Subsequently, the 1st respondent published the names of the appellant appropriately. These are as shown in exhibits “B” and “C”. However, on the 2nd day of February, 2007 vide exhibit “D”, the 3rd respondent forwarded the names of the 2nd respondent to the 1st respondent in substitution for and or exchange of his, without any cogent and verifiable reason. The appellant therefore instituted the suit in the trial court against the respondents.

Originally the appellant sued INEC as sole defendant. However, by the leave of the trial court, the names of Celestine Omehia and the Peoples Democratic Party were added and joined as 2nd and 3rd defendants respectively in the suit on 13/2/07. By an amended writ of summons and an amended statement of claim both filed on 13th day of February, 2007 in the trial court, the appellant as plaintiff claimed against the respondents jointly and severally the following reliefs:

“1. 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 political party and/or the Independent National Electoral Commission (INEC) under the Electoral Act, 2006 only the candidate is disqualified by a court order.

2. 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.
3. 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).
4. 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.
5. A declaration that under section 32(5) of Electoral Act. 2006 it is only a court of law after a law suit, that can disqualify a candidate and it is only after a candidate is disqualified by a court order, that the Independent National Electoral Commission (INEC) can change or substitute a duly nominated candidate.
6. A declaration that there are no cogent and verifiable reasons for the 1st and 3rd 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 13, 2007 Governorship Election in River State.
7. 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 People’s 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 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.
8. 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 People’s 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.”

On 26/1/07, the appellant applied for an order of interlocutory injunction to restrain the 1st respondent, INEC from changing or substituting his name as the Rivers State PDP governorship candidate for the April, 2007 Rivers State Governorship Election unless or until a court order is made disqualifying him based on cogent and verifiable reasons as required under section 34(2) of the Electoral Act, 2006 pending the determination of the suit before the trial court. The trial court in its ruling of 6/2/07 however refused to grant the relief, instead, it granted the accelerated hearing of the substantive case.

Counsel to all parties addressed the trial court on the respective issues formulated by them. The learned trial Judge found that the 3rd respondent has powers to substitute names of its candidates, the substitution must however be done in line with the procedure laid down by the provisions of section 34(1) and (2) of the Electoral Act, 2006. That is, not later than 60 days to the election, a political party in this case the PDP, 3rd respondent, must have informed the 1st respondent, INEC of its intention to change its candidate giving a cogent and verifiable reason for the change. The court can only interfere when the procedure for substitution has not been complied with. The learned trial Judge found accordingly that the substitution of the appellant and submission of the names of the 2nd respondent in replacement thereof was done within time. That the reason of error given by the 3rd respondent vide exhibit “D”, which is the application for the substitution of the appellant’s names with those of the 2nd respondent’s by the 3rd respondent having been accepted by the 1st respondent cannot be questioned by the court. What is more, it is the 1st respondent who has the responsibility to verify whether the reason given by a political party is indeed cogent. Albeit, exhibit “D” was issued “sub judice” and the fact that the 1st respondent acted on it is reprimandable, the action was therefore set aside. The 1st respondent ought to have awaited the outcome of the case pending before the trial court.

The appellant and the respondents were dissatisfied with the judgment of the trial court.

The appellant’s notice of appeal containing eleven (11) grounds dated 16/3/07 was filed on 19/3/07. The appellant’s brief of argument was filed on 5/4/07. The appellant also filed on 11/4/07 the reply brief to the 1st respondent’s brief of argument, a counter-affidavit to the 1st respondent’s motion on notice for leave of court to adduce further fresh evidence in the appeal and the reply brief to the 2nd respondent’s brief of argument on his cross-appeal.

The 1st respondent on 10/4/07 filed the notice of cross-appeal containing three (3) grounds, 1st respondent’s/cross-appellant’s brief of argument and the motion on notice for leave of court to adduce further fresh evidence in the appeal.

The 2nd respondent filed the notice of cross-appeal containing three (3) grounds and the 2nd respondent’s/2nd cross-appellant’s brief of argument on 10/4/07.

The 3rd respondent filed the 3rd respondent’s brief of argument and the 3rd cross-appellant’s brief of argument on 10/4/07. All the briefs and other processes filed were exchanged by parties. The appeal was adjourned to 11/4/07 for definite hearing.

However, on the said hearing date, the 3rd respondent, Peoples Democratic Party filed a motion on notice praying for an order of court striking out or dismissing the appeal for lack of jurisdiction.