On 26-01 -2007, the Appellant Rt. Hon. Chibuike Amaechi, as the Plaintiff, commenced his suit at the Federal High Court, Abuja against the Independent National Electoral Commission (INEC) (now 1st Respondent) as the Defendant. Later the Appellant sought and was granted leave to join, as second and third Defendants respectively, Celestine Omehia (now 2nd Respondent) and People's Democratic Party (now 3rd Respondent). I intend hereafter to refer to the Plaintiff/Appellant as Amaechi and the 1st, 2nd and 3rd Defendants/Respondents as I.N.E.C, Omehia and POP respectively.
In his further amended statement of claim, Amaechi claimed against the Respondents the following relief’s:
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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.
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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.
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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).
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iv
A declaration that the only way Independent National Electoral Commission (INEC) can disqualify, change or substitute a duly nominated candidate of apolitical party is by Court Order.
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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.
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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 2nd Defendant candidate of the People's Democratic Party (PDP) FOR THE April, 13 2007 Governorship Election in Rivers State.
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vii
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.
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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 River State People’s 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 summarized 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:
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3
"In answer to Paragraph 14 of the statement of claim the 1st Defendant states that the Plaintiff's Political Party (the 3rd 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.
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7
Further to Paragraph 18, the 1st 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.
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11
The 1st Defendant states that Parties have a right to change or substitute their candidates up to 60 days before the elections and that the substitution of the Plaintiff was done within the time frame for substitution, that is, on or before 13th February, 2007."
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:
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3i
the Plaintiff is not a candidate of the People’s Democratic Party (PDP) for the gubernatorial election for Rivers State scheduled to hold in April 2007.
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3iv
the name of the Plaintiff was included in the list of candidates of the 3rd Defendant for gubernatorial elections in error and submitted to the 1st Defendant. It was this error which was corrected by the 3rd Defendant by its letter dated 2nd February 2007 which letter and back up documents the Plaintiff has annexed to his amended statement of claim as Annexure E.
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3v
by the Plaintiff Annexure 'E' the Plaintiff's name erroneously entered on the 3rd Defendants List of Gubernatorial candidates was removed and substituted with the name of the 2nd Defendant.
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4ii
the Plaintiff has been successfully and fully substituted with the 2nd Defendant on the 2nd day of February 2007 before the Plaintiff sought and obtained an order of this Honorable Court on the 13th day of February joining the 2nd and 3rd Defendants in this case.
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4iii
the Plaintiff's name was duly substituted with the name of the 2nd Defendant within the time allowed by the Electoral Act 2006.
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5i
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 3rd Defendant as its gubernatorial candidate.
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5iii
that the decision of the 1st 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:
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3
"In answer to paragraph 10 of the statement of claim, the 3rd Defendant avers that the Plaintiff's name was substituted for the 2nd Defendant vide 3rd Defendant's letter of 2nd February, 2007 under the hand of the National Chairman and National Secretary of the 3rd Defendant. A copy of the said letter addressed to the 1st Defendant shall be founded upon at the hearing of the substantive suit.
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4
Paragraphs 11, 12, 13 and 14 are hereby denied. With specific reference to paragraph 14 of the statement of Claim, the 3rd Defendant states that Plaintiffs name and that of his running mate have been substituted for the 2nd Defendant, who is the 3rd Defendant's candidate for the Rivers State Governorship election in April, 2007.
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7
3rd 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.
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8
Paragraph 30 of the amended statement of claim is hereby denied and in response to the averments contained therein, the 3rd Defendant states that it has the right to change or substitute the name of its candidate submitted to 1st 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 re-asserted 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 issue 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 2/02/2007. (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 15-3-07, Nyako, J., came to two main conclusions namely:
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1
That the reason given by PDP for substituting Omehia for Amaechi satisfied the requirements of the Electoral Act, 2006.
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2
PThat the letter written by PDP to INEC on 2/02/2007, at a time Amaechi's suit was subjudice 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 22/3/2007 and 28/3/2007 respectively.
Instead of allowing the Appeal of the Appellant to be determined on the outcome of the decision of this Court in Ugwu v. Araraume, the 2nd Respondent Celestine Omehia brought a Motion for an Order dismissing the Appeal or otherwise striking out the Appeal of the Appellant on the ground that the Appeal had been overtaken by the expulsion of the Appellant from the PDP. The Motion was taken on 11th April 2007 and Ruling was reserved for 12th April, 2007. On the same date 11th April 2007, the Federal Government declared 12th and 13th public holidays. It then became practically impossible to have a ruling until 16th day of April, 2007.
In the meantime, Election to the Office of Governor had taken place on 14/4/07. On 16th day of April, 2007 even before the reserved ruling was read, the PDP made an oral application urging the Court of Appeal to strike out the Appeal on the ground that Election having taken place, the Appeal had become academic. The Court of Appeal in its ruling held that in view of the relief’s being claimed by the Appellant, it has no jurisdiction to adjudicate upon the Appeal.
The Appellant appealed against the said decision in SC. 74/07 to the Supreme Court upon a number of grounds.
The Supreme Court allowed the Appeal of the Appellant in SC.74/07 and ordered an expeditious hearing of the Appeal and the Cross-appeal before the Court of Appeal.
Rather than hear the Appeal as directed by the Supreme Court, the Court of Appeal stayed further proceedings before it. The Appellant appealed to the Supreme Court in SC. 126/07.
The Supreme Court re-stated its order that the Appeal before the Court of Appeal be heard expeditiously. The Appeal was heard and Judgment delivered on 20th July 2007.
Dissatisfied, Appellant appealed to the Supreme Court and the Respondents Cross-appealed to the Supreme Court in the present appeal.
Whether or not the two Courts below were correct in their conclusion that the reason...
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