According to him, what is relevant is the status of the appointee as at the time of his appointment. Semantically, he argues that should any ground of disqualification arise after appointment, the appropriate claim to be brought before a court would be one calling for the disqualification of such from continuing in office and not one of nullification.
According to him, a call for nullification of the appointment of 4th – 8th defendants presupposes that the appointment were void ab initio. Mr.Aruwa describes the evidence of the claimant’s sole witness that 4th – 8th defendants are members of PDP as one based on conjectures. He argues further that in any event, Exhibits P7 and P8 never identified the 4th defendant as the Barr. Abraham A. Olaniran who contested the PDP primaries for Kabba/Bunu House of Assembly election.
29. He also submits that Exhibits P10 and P15 indicate that both Adamu Ahmed Samari and Barr. Ayo Abraham withdrew their membership of PDP.He argues that even if it is assumed but not conceded that the 4th and 7th defendants are members of the 9th defendant respectively, once a person resigns from a political party, he ceases to be a member of that party. He submits further that there is no evidence to determine when both Adamu Ahmed Samari became members of PDP. He contends that nothing was adduced in respect of 5th, 6th and 8th defendants and urges the court to hold that the claimant has been unable to prove his case against the defendants. He also urges me to believe the evidence of DW1 who testified for the defendants particularly his evidence that it was one AmokaIsah, his cousin, who contested the House of Representatives election in 2007 under the Action Congress of Nigeria and not himself (the 5th Defendant). Mr.Aruwa also urges me to hold that the retirement of the 4th – 8th defendants has overtaken the reliefs being sought and rendered any declaration or order of this court an academic exercise. Mr.Aruwa also relies on the principle of laches and argues that the claimant is guilty of delay in bringing this action, five years after the appointment of the 4th – 8th defendants. He finally urges me to dismiss the suit as lacking in merit.
Response of the Learned Counsel for the Claimant
30. In responding to all the issues raised by learned counsel for the defendants,Mr.James Ocholi, SAN, formulates three issues for determination viz:
1. Whether having regard to the provision of section 197(i)(b) of the 1999 Constitution of the Federal Republic of Nigeria (FRN) (as amended) read together with section 197(2) and section 200(1) along with the provision of part II para B of the 3rd schedule of the 1999 Constitution of FRN (as amended), the 3rd Defendant with its Chairman as 4thdefendant), 5th – 8th Defendants as part of its membership can be said to be validly constituted.
2. If the answer to issue one is in the negative, whether the 3rd Defendant being invalidly constituted against the spirit and letters of the Constitution of the Federal Republic of Nigeria 1999 (as amended) can validly perform any of its functions provided for by the Constitution.
3.Whether the 3rd Defendant was right in law to have proceeded to organise undertake and supervise the Local Government Election to the offices of Chairman and councillors on the 4th of May, 2013 while the Claimant’s appeal to the Court of Appeal Abuja and the Motion on Notice seeking interlocutory injunction to restrain the 3rd Defendant amongst others from conducting the said election was pending to the knowledge of the 3rd Defendant, at the Court of Appeal at all material times.
31. Mr.Ocholi, SAN, argues issues Nos 1 and 2 together. He submits that the crux of this case is that the 3rd defendant is not properly composed as required by the 1999 Constitution of the Federal Republic of Nigeria (as amended) and, therefore, incompetent to perform the functions created by the Constitution on the ground that the 4th – 8th defendants were members of the 9th defendant (PDP). He argues that a member of any political party or a partisan politician who may not even belong to any political party, who is put in a position to organise, undertake and supervise an election will definitely favour his political party or candidates of his party. According to him, this will make nonsense the concept independent or impartial arbiter at the election, which will abuse the democratic process.
32. Mr.Ocholi, SAN, x-rays the oral evidence of the sole witness for the claimant and the documents tendered and submits that the case against the 4th defendant as a member of the 9th defendant has been duly established. He refers to Exhibit P5, the PDP result of the State House of Assembly Primary election 2010 which he contested; Exhibit P8, the INEC report on the PDP primary election Kabba/Bunu constituency dated 6th January 2011 with an attachment; Exhibit P15, a letter from the 4th defendant to the 9th defendant withdrawing his membership of the 9th defendant and Exhibit P16, acceptance letter of the 9th defendant of the withdrawal of 4th defendant’s membership. He draws attention to the fact the in spite of this body of glaring evidence against the 4th defendant, he never came forward to rebut same.Mr.Ocholi, SAN, urges the court to treat this as an admission of the claimant’s claim. He makes similar submissions in respect of the 5th, 6th and 7th defendants.
33. Mr.Ocholi, SAN, further submits that the mischief the amendment to section 200 (1) of the Constitution attempts to cure is that members of political parties or people who are partisan should not be members of a State Independent Electoral Commission in order to enhance its independence. He describes the 4th – 8th defendants as confessed members of the 9thdefendant. He, therefore, submits that in the circumstance, the composition of the 3rd defendant is not in accordance with the 1999 Constitution of the Federal Republic of Nigeria (as amended). According to him, even if it is the 4th defendant that is found to be unfit to be chairman of the 3rd defendant, his position has destroyed the constitutionality of the 3rd defendant. He cites the following authorities;
Omoregbe v. Lawani (1980) 3 – 4 SC 108 Odulaja v. Hadded (1973) 11SC 357 Oseigbe&Okwaranya& 7 Ors (1962) 2NSCC 386 at 388; PDP &Ors v. Ekiti Independent Electoral Commission & 8 ors suit No HAD/196/2011 (unreported) and Ojukun v. Obasanjo (2014) 12NWLR (Pt 886) P. 169 at 197.
34. On issue 3, Mr.Ocholi, SAN, complains about the decision of the defendants to proceed to conduct the local government election on May 4, 2013 in spite of the fact that an appeal filed by the claimant (appellant/applicant) was pending. He claims that the defendants had notice of the appeal pending at the Court of Appeal Abuja; a fact, which according to him constitutes lispendis. By proceeding to conduct the election of May 4, 2013, while the appeal remains pending, indicates that the defendants were taking a risk, the consequences of which they must bear, he submits. He refers to the following authorities; Bamigboye v. Olusoga (1996)4 NWLR (Pt 444) 520 at 532. Usman v. Garuke (1999) 1NWLR (Pt 587) 466 at 490.Ararume v. INEC & 2ors (2007) 9NWLR (Pt. 1038) 127 at 161-162 Agwusiobo& 1or v. Okagbue&Anor (2001) 15NWLR (Pt 737) 502.
35. Mr.Ocholi, SAN, replies to all the points raised by learned counsel for the defendants, one after the other. In respect of the capacity and the locus standi of the claimant, the learned silk submits that all the points raised by learned counsel for the defendants were taken up at the interlocutory stage of these proceedings and decided by this court. The court has, therefore, become, as it were, functus officio. He cites Ebba v. Ogodo (2000) 10 NWLR (Pt 875) 387 at 420 – 421 paras G – B. He maintains that the claimant possesses the necessary locus, competency and capacity to maintain this action.
36. Secondly, as regards the application of the Public Officers Protection Law in relation to the arguments of defendants’ counsel of the failure of the claimant to bring this action within three months from the date of appointment of the 4th – 8th defendants, Mr.Ocholi, SAN, submits that the law cannot protect the defendants who are in clear violation of the Constitution. He argues further that the composition and structure of the 3rd defendant are continuous acts and that in any event, as at the time this suit was instituted, the local government election which formed the subject-matter of this action was yet to hold. He, therefore, submits that this action is not statute barred.
37. Thirdly, on the allegation of this case constituting an abuse of court process, Mr.Ocholi SAN also submits that this is an issue that had been adjudicated upon at the interlocutory stage. He refers to my earlier ruling on the subject. He refers to Exhibits D1, D2, and D4 and argues that no court process has been abused by the claimant and neither is the principle of estoppel by conduct applicable.
38. On the question as to whether or not this suit has been reduced to a mere academic exercise, Mr.Ocholi, SAN, disagrees and submits that this suit involves many live issues that require the pronouncements of the court. He identifies one of the live issues as the determination of the question as to whether or not members of political parties are competent or qualified to be appointed as member of the 3rd defendant, having regard to the provision of section 200(1) of the 1999 Constitution of the Federal Republic of Nigeria. He argues further that the fact that the 4th -8th defendants vacated their seats does not remove the necessity to determine their in competence to conduct the 4th May 2013 local government election.
39. Lastly, Mr.Ocholi SAN submits that the non-joinder of the elected chairmen and councillors cannot defeat this action, having regard to the provisions of Order 14 Rule 16 (1) the Kogi State High Court (Civil Procedure Rules) 2006. He describes the submissions of learned counsel for the defendants on non-joinder of the elected chairmen and failure to lay the complaints in this suit before an election tribunal as a product of misconception of this case. He refers to section 74(1) of the Local Government Election Law 2004 which stipulates the grounds upon which an election may be questioned. This suit, according to him, falls outside the purview of the Election Law 2004 as it has nothing to do with the qualification of the candidates at election; neither does it complain about corrupt practices, non-compliance with the electoral law, votes cast at election or exclusion from election. He, therefore, urges that this court should assume jurisdiction to entertain this action.
40. Both learned senior counsel for the 1st – 8th defendants, Mr.Akubo, SAN, and learned counsel for the 9th defendant, Mr. Aruwa filed replies on points of law which shall be duly considered in this judgment.
Consideration of Preliminary Points
41. Let me at this stage express my deep thanks to all learned counsel in this case for their illuminating addresses. There is no doubt that I have, in this case, heard very lengthy, very lucid, and very learned arguments on issues formulated by them. I really must commend them for not sparing any effort in researching very deeply on the issues, and presenting me with very able, exhaustive and comprehensive arguments. Although, I was initially inclined to think that they had done much of downloading on the subjects, it was after applying myself to the various authorities they have so generously supplied me that I found myself sincerely appreciative of the efforts they have expended in this regard. In so making available this wide library of authorities, they have enabled me to comfortably digest the considerations truly and to finally emerge confident about how I now view the issues which I hereby express.
42. It will be prudent in this matter, I think, to first attend to some preliminary issues raised by learned senior counsel for the 1st – 8th defendants and learned counsel for the 9th defendant. The first of these issues is the locus standi and the capacity of the claimant to institute this action. It is important that I attend to the issue of locus standifirst. This is because, the presence of standing means that I can proceed to examine the merits and demerits of this action, while absence of standing means the automatic end of this action upon so holding (Adesokan v. Adetunji (1994) 5NWLR (Pt 346) 540). It would thus be futile to go into debate of all the merits and demerits of the action herein when it may well be that the case does not pass the first crucible or hurdle of standing. (Oloriode v. Oyebi (1984) 1SCNLR 390 (SC). I shall therefore, proceed to examine the arguments of learned counsel on this basic question and either terminate the case at this point or proceed to determine it on merits, depending on what I find to be the claimant’s position vis-a vislocus standi and her capacity to sue.
43. Let me recall here that, at the interlocutory stage of this case, the claimant’s capacity and standi were put into question and challenged by the defendants. The argument then centred around the fact that with the merger of ACN, ANPP and CPC, into APC, the three parties that merged had gone into extinction and, therefore, could not be substituted with another party without proof of the new party’s certificate of registration. I resolved the issue then by taking judicial notice of the merger of the three political parties under section 124(1) and (2) of the Evidence Act 2011, being a fact of common knowledge in Nigeria. The objection to the capacity here is an expanded version of the points taken up at the interlocutory level. The contention of learned senior counsel for the 1st – 8th defendants and learned counsel for the 9th defendant is that the claimant’s sole witness stated in his evidence in-chief that the original claimants still remained independent political parties in spite of their merger and that the Independent National Electoral Commission was yet to approve the merger of three parties into one as required by law. They also argue that failure of the claimant to tender her certificate of registration is fatal, as her capacity to sue and be sued has not been established; which according to them is a fundamental requirement to institute an action. Mr.Ocholi, SAN, arguesper contra, stating that the claimant has locus standi.
44. The case, HSFCO (Nig) Ltd v. Springside Co. Ltd (SC)(supra) cited by Mr.Aruwa, of counsel, provides a guide for the resolution of this point. In it, the Supreme Court held:
The issue as to whether or not a plaintiff has a locus standi to institute the action is determinable from the averments in the statement of claim… In other words, it is the averments in the statement of claim that would disclose the rights and obligations or interest of the plaintiff which has been violated or threatened with violation or infringement then, the trial court would be in a position to determine whether the plaintiff has locus standi to institute the action (P. 85 lines 10 – 20).
Guided by the above authority, I took a glimpse at the averments in the statement of claim. In paragraph 1 of the amended statement of claim filed pursuant to an Order of this court of 14th October, 2013, the claimant avers:
“The claimants (sic) is a registered political party in Nigeria with their State Office (sic) in Lokoja, Kogi State, while they have their offices at all Local Government Area and words of the State within the jurisdiction of this Honourable Courts (sic) “(P.I).
45. In response, the 1st – 8th defendants and the 9th defendants admitted the facts. In paragraph 1 of the further amended joint statement of defence of the 1st – 8th defendants, filed on 4/02/2014, it is stated as follows:
“The 1st – 8th Defendants (hereinafter called” the Defendants”) admit paragraph 1 of the Amended statement of claim (herein-after called “the claim”).
Similarly, the 9th defendant in paragraph 1 of her statement of defence dated 4th November 2013, avers as follows:
“The defendant (sic) admits paragraphs 1, 2, 3, 4, and 5, of the statement of “ claim”.
46. It is a well-recognized principle that has received the stamp of authority of the highest court of this land, in numerous decisions, that if a particular averment of a claimant is admitted, there will be no onus to prove what has been admitted by the opposite party (Bunge v. Gov. Rivers State (2006) 12 NWLR (Pt. 995) 573.Accordingly, I hold that, the defendants having admitted, in their pleadings, that the claimant is a registered political party in Nigeria, it does not lie in their mouths to challenge her locus standi or capacity to institute this action again. The claimant here, on the pleadings before this court, has discharged the onus of proof cast on her and section 133 (1) of the Evidence Act 2011 necessarily imposes a burden on the defendants to prove the negative (Bunge v. Governor of Rivers States)(supra). This is particularly so in the light of the provision of section 80 of the Electoral Act, which stipulate that:
‘’Every political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name”.
47. The provision of this section has put to rest any doubt about the locus standior capacity of the claimant to institute this action. It has alsorendered all the arguments of learned counsel for the defendants, with due respect, puerile and futile. It is my holding, therefore, that having regard to the pleadings before me, the claimant is a registered political party, and therefore, has the capacity and locus standi to undertake the prosecution of this action.
48. The next preliminary point taken up by Mr.Akubo, SAN relates to the application or otherwise of the provisions of section 2 of the Public Officers Protection Law, Cap 111, Laws of Northern Nigeria 1963 (as applicable to Kogi State). It is the contention of Mr.Akubo SAN that this action is statute barred having not been brought within three months from the date of appointment of the 4th – 8th defendants in 2008, when the cause of action arose. The basic response of Mr.Ocholi, SAN, is that this case falls within one of the exceptions to the general rule on the application of statute of limitation. The learned senior counsel, however, fails to buttress this argument with any legal authority.
49. Let me state here that the exact date of the appointment of the 4th – 8th defendants in 2008 is only extracted in evidence. The argument of Mr.Akubo, SAN, is only premised on the calculation of the lapse of five years between 2008 and 2013 when this action was filed. Be that as it may, section 2(a) of the Public Officers Protection Law Cap 111 Laws of Northern Nigeria (as applicable to Kogi State) provides:
2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority the following provisions shall have effect;
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained, of or in case of a continuance of damage or injury within three months next after
50. The basic principle is that time begins to run for purposes of limitation of law from the date of the accrual of the cause of action in a case (see Ofili v. Civil Service Commission (2007) LPELR-8538 (CA). The crucial question here is to determine when the cause of action in this case accrued. In determining this question, it is pertinent to know the true meaning of a cause of action. In Aiyelabegan v. L.G. Service Commission, Ilorin, Kwara State (200( 22WRN108, it was held that a cause of action is a set of facts and or the factual situation which gives a party a right to judicial reliefs. The cause of action in a case incorporates every fact which would support a party’s right to succeed or to have the judgment of the court in his favour. What constitutes a cause of action is put more succinctly in Ekiti State Electoral Commission &Ors v. PDP &Anor (2013) LPELR – 2041 (CA) in the following words:
“…the whole or complete set of circumstances giving rise to an enforceable claim. Therefore, it consists of the fact or diverse facts which put together, give the plaintiff a right to sue. It has two component elements, firstly, the wrongful act or omission of the defendant which gives the plaintiff his reason to complain; and secondly, the consequent damage”(Onyemenam, JCA, P. 54).
And when the issue arises as to what constitutes cause of action in a suit, the writ of summons and statement of claim constitute the podium for its determination (see Ofili v. Civil Service Commission (supra). The relevant averments in this regard are paragraphs 7, 8, 13, 14 and 15 of the amended statement of claim which are reproduced hereunder:
7. The 5th – 8th Defendants are commissioners/ members of the 3rd Defendant appointed by the 1st Defendant but are members of PDP in their various wards and Local Government Area of their origin in Kogi State.
8. The 9th Defendant is also a registered Political Party in Nigeria having the Governor of Kogi State and 4th – 8th Defendants are some of her members and also have the right to sponsor candidates for the forthcoming Local Government election in Kogi State.
13. The Claimants shall be highly prejudiced if the 4th – 8th Defendants are allowed to remain in that office to conduct the forthcoming Local Government Election as a member of PDP which party is also in control of the 1st Defendant and is sponsoring candidates to contest the election which the 3rd Defendant is to organise.
14. The composition of the 3rd Defendant headed by the 4th Defendant is illegal; unconstitutional null and void.
15. The 1st Defendant had taken several steps in respect of the forthcoming Local Government Election in Kogi State addressing several Press Conferences regarding the dates and activities leading to the conduct of Local Government Election in Kogi State. Minutes of some of the meeting and Press release are hereby pleaded so also the election timetable.
51. It is clear from the foregoing paragraphs that the cause of action in this case necessarily consists of the appointment of the 4th – 8th defendants by the 2nd defendant as members of the 3rd defendants; the composition of the 3rd defendant; the facts relating to the allegation of the 4th – 8th defendants membership of the 9th defendant; and the steps taken in respect of the local government election which was yet to hold as at the time this action was filed on 20th March 2013.
52. From both the writ of summons and the statement of claim that as at 20th March 2013, the constitutional validity of the composition of the 3rd defendant to conduct the local government election of 4th May 2013 was a live issue. The approach adopted by Mr.Akubo, SAN, in defining and restricting or limiting the time the cause of action arose in 2008 when the 4th – 8th defendants were said to have been appointed, is, with due respect, faulty, as it ignores other relevant facts and circumstances that constitute the cause of action in this case. This action goes beyond merely challenging the appointment of the 4th – 8th defendants. As at 20th March 2013, (when the action was filed), the local government election that constitutes an integral part of this action was yet to hold. In all the circumstances of this case, in the light of the foregoing, I hold that this action is not statute barred.
53. The third preliminary point that calls for determination here is whether or not this action constitutes an abuse of the process of this court. Both learned counsel for the defendantsrefer to what they call three antecedent suits which according to them were on the same subject-matter and instituted by the original claimants who were predecessors of the claimant. The three suits are HCL/57/2011 (Exhibit D1), HCL/151m/2012 (Exhibit D2 and HCL/303m/2012 (Exhibit D4). It is contended that the claimants cannot litigate on the same matter already litigated upon in Exhibits D1, D2 and D4.
54. A similar issue also came up at the interlocutory stage of this action and I pronounced on same, holding that the process of this court had not been abused by the institution of this action. This is what I said:
“This case before me, in essence, challenges the constitutionality or otherwise of the composition of Kogi State Independent Electoral Commission (KGSIEC), the third defendant. One of the cases before the Chief Judge is an application for judicial review by way of certiorari, prohibition and mandamus over the election slated for 8/12/12 and the appointment of liaison officers for the local government area councils, as the case may be. In my view, none of the cases possesses the elasticity to stretch its subject-matter to cover the other. Each case exists on its peculiar subject, facts and circumstances… I should also add here that the process of this court has not been abused in any way by the institution of this action in this court. (Omolaye-Ajileye, J., PP 8 – 9)
I have no reason to depart from these pronouncements. Istand by them. I also wish to add here that I fail to see how the principle of estoppel by conduct or sections 169 and 151 the Evidence Act apply to the claimant. This is because, this action was instituted to challenge the May 4 2013 local government election, at a time when the election was yet to hold.
Objection to Admissibility of Some Documents
55. Mr Akubo, SAN, has asked me to discountenance Exhibits P1, P6, P9, P10 and P15. The documents were admitted, in the first place, because Mr.Akubo, SAN, without objection. All the same, he has now drawn my attention to the fact that Exhibits P1 and P6 are public documents which have not been certified. The point of objection to Exhibits P9, P10 and P15 is that they are mere photocopies. I have re-examined the documents and found the points raised by Mr Akubo, SAN, well made out. There are statutory prohibitions against the admission of the documents in the form in which they have been presented to the court. I, shall, therefore, discountenance them. See sections 104 and 105 of the Evidence Act 2011.
Consideration of Issues
56. Upon a deep reflection of the totality of this case and the submissions of all learned counsel for the parties, I have come to the conclusion that the disputes in this case can be resolved upon determination of the following questions:
1. What is the proper interpretation of section 200(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)?
2. Has the claimant succeeded in proving that the 2nd – 8th defendants are members of the 9th defendant (People’s Democratic Party (PDP)?
3. Was the 3rd defendant properly constituted to conduct the 4th May 2013 local government election as required under section 200 (1) of the Constitution (as amended)?
4. If the answer to issue No 3 above is in the negative, what is the effect of such improper constitution of the 3rd defendant on the local government election of 4th May 2013?
57. Before I consider these issues, I shall, at this stage, look into the submissions of learned counsel for the defendants that this suit has becomeacademic. Learned senior counsel for the 1st – 8th defendants and learned counsel for the 9th defendants have argued that this suit has become academic as a result of what they refer to as the retirement of the 4th – 8th defendants from the 3rd defendant and the fact that the local government election that forms the subject matter of this action had held. This may well be. However, one should not overlook the fact here that, from the issues formulated above, the interpretation of a particular section of the 1999 Constitution (section 200(1), is involved.In Agbakoba v. INEC (2008) LEPLR 232(SC), the Supreme Court stated that an action becomes academic “when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making pronouncement upon it; it is an otherwise an exercise in futility (P. 63). Also, in Plateau State v. Attorney-General of the Federation (2006) 3NWLR (Pt 67) 346, the Supreme Court, nevertheless, stated that a suit does not necessarily become spent or academic merely because it was heard after the act or conduct which gave rise to the action. And, of more particular relevance is the pronouncement of the apex court that issues relating to interpretation of a living constitution, as in this case, cannot be dead, academic, speculative or hypothetical (See Plateau State v. A.G. Federation (supra). Consistent with these authorities, therefore, I hold that having regard to the character, nature, and contents of this suit, the retirement of the 4th – 8th defendants from the 3rd defendant and the holding of the local government election on 4th May 2013 cannot render this suit an academic exercise. This is more so, as this court is being called upon to interpreta particular section of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which is a living constitution. It is crucially important to determine the issues formulated. I so hold.
Interpretation of Section 200(1) of the Constitution
58. Section 200(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) forms the fulcrum of this case. The case of the claimant is that the 3rd defendant is not properly composed in accordance with section 200(1) of the 1999 Constitution (as amended). The claimant hinges her position on the allegation that the 4th– 8th defendants belong to the 9th defendant political party (PDP), contrary to the provision of section 200(1) of the Constitution (as amended). It is argued that once it is established that any or all of the 4th– 8th defendants belong(s) to the 9th defendant, then, the 3rd defendant would not have been properly constituted to conduct the 4th May 2013 local government election in Kogi State. This position has been vigorously contested by the defendants.
59. Originally, section 200(1) of the 1999 Constitution read as follows:
No person shall be qualified for appointment as a member of any of the bodies aforesaid if (a) he is not qualified or if he is disqualified for election as a member of a House of Assembly…
Item 21of the First Alteration Act No 1 of 2010 provides:
“Section 200(1) (a), line 2 of the Principal Act is altered, by inserting immediately after the word Assembly” the words, “provided that a member of any of the said bodies shall not be required to belong to a political party and in the case of the State Independent Electoral Commission, he shall not be a member of a political party”
With effect from the commencement of the amendment to the Constitution of the Federal Republic of Nigeria (First Alteration) Act No 1 2010, section 200(1) now reads:
“No person shall be qualified for appointment as a member of any of the bodies aforesaid if (a) he is not qualified or if he is disqualified for election as a member of a House of Assembly provided that a member of any of the said bodies shall not be required to belong to a political party and in the case of the State Independent Electoral Commission, he shall not be a member of a political party (Underlining mine for emphasis)
The question that arises here is what is the true meaning of this provision?
60. In PDP V. INEC, (1999) 11NWLRP (Pt 626) 200, the Supreme Court dealt with the approach to be adopted in the interpretation of statutory provisions which is the same as interpretation of constitutional provisions. It gave its approval to an approach which seeks to ascertain the legislative intent of the law makers. The apex court declared:
“The current approach in construing statutory provisions requires judges to ascertain the legislative intent of the law makers, a task somewhat akin to pinpointing the intent of a testator or disputing parties to a contract. It is the modern view that proper judicial construction of statutory provisions requires recognition and implementation of the underlying legislative purpose” (Wali J.SC at pp 248 – 249)
The essence of this approach is obviously, to maintain and sustain the fabrics of constitutionalism and constitutionality (see INEC v. BalarabeMusa (2003) 3 NWLR (Pt. 806) 72.
61. But then, how does court discover the intention of the law makers? Again, the Supreme Court gave a guide in Ishola v. Ajiboye (1994) 6NWLR (Pt 352) 506 where the court statedthat in construing a Constitution some meaning or effect should be given to all the words or language used therein if it is possible to do so in conformity with the intention of the framers. If the language used is clear and unambiguous, its meaning and intent are to be ascertained from the instrument itself by construing the language as it is written. Unless the context suggests otherwise, words are to be given their natural, obvious or ordinary meaning.
62. It is also recognised that one of the most useful guides to interpretation is the application of mischief rule which considers the State of law before enactment, the defect which the legislation sets out to remedy or/and prevent, the remedy adopted by the legislature to cure the mischief and the true reasons of the remedy. The duty of the court therefore is to adopt such interpretation that will enable the suppression of the mischief and promote the remedy within the true intent in the legislation (See Ifezue v. Mbadugha&Anor (1984) 5SC 79.
63. In attempting to interpret the provisions of the Section 200(1) of the constitution (as amended), I am being properly guided by the principles of interpretation enunciated above.
64. The provision of section 200(1) of the Constitution (as amended) quoted above clearly bars or excludes a member of a political party from membership of a State Independent Electoral Commission. The amendment changed the old order where it was possible for members of a political party to populate or constitute a State Independent Electoral Commission. The amendment of section 200(1) of the Constitution, in my view, reveals a determination on the part of the Legislature to ensure that membership of a State Independent Electoral Commission consists of persons that are politically neutral who will discharge the responsibilities of organizing, undertaking , and supervising all elections to local government councils within the state with transparency, thereby securing the confidence of not just the political parties involved in such elections but also that of the general public. To construe the provision of Section 200(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) otherwise would be contrary to the letter and spirit of the constitution.
Issue No 2. Are the 4th – 8th Defendant Members of the 9th Defendant?
65. The evidence of the claimant’s witness on this relates issues to the 4th and 5th defendants. Facts were pleaded in paragraphs 17, 18, 19 and 20, specifically alleging that the 6th and 7th defendants. However, in his oral evidence before the court, nothing was mentioned about the said defendants membership of the 3rd defendants. It is trite that pleadings, however strong they may appear to be, without evidence or proof thereof, go to issue. Evidence must be led to prove facts relied upon by a party or sustain the allegations raised in the pleadings. (see UBN Plc v. Astra Builders (WA) Ltd (2010) 2SCNJ 84. A mere averment in pleadings without evidence proves nothing unless admitted. (See George v. Dominion Flour Mills Ltd (1963) 1SCNLR 117. The averments paragraphs 17, 18, 19 and 20 of the claimant’s amended statement of claim, in so far as they relate to the allegation of the 6th and 7th defendants’ membership of the 3rd defendant are hereby discountenanced for want of proof.
66. In respect of the 4th defendant, Barrister Abraham A. Olaniran, Chairman KOGSIEC, CWI testified to the fact that he is a member of the 9th defendant who contested the primaries of Kabba/Bunu constituency of Kogi State House of Assembly under the platform of the 9th defendant on 4/1/2011 for the April 2011 general election but lost. CW1, indeed, described him as “a stalwart of People’s Democratic Party”. He tendered a certified true copy of INEC Kabba/Bunu Local Government Area Report on PDP primaries for the Kogi State House of Assembly. The document shows that seven aspirants contested the primaries. The name, Barr. Abraham A. Olaniran, the 4th defendant, is No 3 on the list. It is indicated therein that he scored 10 votes. The highest number of votes in the said. Primaries went to TaiwoOjo Nathaniel, who scored 203 votes.
67. It is significant to mention here that, although, the 4th defendant against whom such formidable and strenuous allegations were made never came up to give evidence. And DWI, Hon. AmokaSuberu, the 1st – 8th defendants’ sole witness never did as little as alluding to any fact in defence of the allegations. It is elementary that a statement on oath that is not adopted at trial is moribund as it is deemed abandoned.
68. Similarly, 5th defendant, Hon. David Apeh, who is alleged to be a card carrying member of People’s Democratic Party (PDP) i.e the 9th defendant and had enjoyed and continued to enjoy political patronages in the form of plum appointments from PDP governments at various times, gave no evidence, in spite of the fact that he filed an elaborate 20 – paragraph witness statement on oath. It is hardly necessary for me to state here that by its very nature and character, a witness statement on oath cannot speak. It speaks through a witness, and as long as a party refuses or fails to adopt it to articulate its content, it remains a dormant process in the court’s file.
69. The implication of the foregoing is that I am left with no other option than to accept the evidence of the claimant’s witness on the points relating to the membership of the 4th – 5th defendants of the 9th defendant/political party (PDP). Section 135(1) of the Evidence Act 2011 is clear on this point as it provides. “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists”. In Baba v. Nigerian Civil Aviation &Anor (1991) LPELR – 692(SC), the Supreme Court stated clearly that “wherever on an issue evidence comes from one side and this is unchallenged and uncontradicted, it ought normally to be accepted on the principle that there is nothing to be put on the other side of the balance, unless of course it is of such quality that no reasonable tribunal should have believed it. So, when evidence goes one way, the onus of proof is discharged on a minimal of proof”. (Nnaemeka-Agu, JSC, P. 32). Flowing from the above principles, I am bound to accept the evidence of CW1 that both the 4th and 5th defendants are members of the 9th defendant (PDP). I accept same.
Issues Nos. 3& 4 – Was the 3rd Defendant properly constituted or composed to conduct the 4th May 2013 Local Government Election in Kogi State? If notwhat is the Effect?
70. The issue at stake here calls for the application of the provision of section 200(1) of the 1999 constitution of the Federal Republic of Nigeria (as amended) to the facts established in this case. At the risk of repetition but for purposes of clarity, the said section is reproduced hereunder:
“No person shall be qualified for appointment as a member of any of the bodies aforesaid if (a) he is not qualified or if he is disqualified for election as a member of a House of Assembly provided that a member of any of the said bodies shall not be required to belong to a political party and in the case of the State Independent Electoral Commission, he shall not be a member of a political party(underlining mine).
There is no doubt that as at the 4th May 2013, the 4th defendant, was the chairman, Kogi State Independent Electoral Commission while the 5th defendant was a member. The uncontradicted evidence before me has established that both the 4th and 5th defendants are members of Peoples’ Democratic Party (PDP). The evidence shows that the 4th defendant even contested the primaries for the Kabba/Bunu constituency under the platform of the 3rd defendant on 4th January 2011. The INEC report of the said primary (exhibit 8) reads:
“The PDP primary into Kogi State House of Assembly Kabba/Bunu Local Government Area chapter was held on the 4th January 2011 the primary was observed by the following the INEC, the SSS, the police and other Security agencies and the State representatives of the party. There were 344 delegates that attended the primarily election from all the 15 wards on the Local Government. There are also 7(seven aspirants into the State House of Assembly. They are as follows:
1. Barr. Olowomoran D. Kayode.
2. TaiwoOjo Nathaniel
3. Barr. Abraham A. Olaniran
4. Barr. Michael James
5. Aribido Funsho
6. Femi Obalemo
7. BuramohFolorunsho.
The primary was conducted in a peaceful manner and condusive atmosphere. Throughout the duration of the primary, the activities (sic) was like a marriage ceremony with pomp and pageantry.
Below is the result.
Names of Aspirant No of votes Cast
1. Barr. Olowomoran D. Kayode 13 votes
2. TaiwoOjo Nathaniel 203 votes
3. Barr. Abraham A. Olaniran 10 votes
4. Barr. Michael James 15 votes
5. Aribido Funsho 1 vote
6. Femi Obalemo 80 votes
7. BuramohFolorunsho. 14 votes
Total 336 votes
The total votes cost 336 while 8 votes counted void.
Above is hereby submitted.
AyilaraOlarewaju Uhuami O. Usman
Monitor Monitor
71. It is significant to note here that as at 4/1/2011 when the primaries held, Section 200(1) of the Constitution had been amended to bar members of political parties from becoming members of State Independent Electoral Commission. Mr.Akubo, SAN, has argued that the amendment to section 200(1) of the constitution does not have a retrospective effect. He is very correct and I agree with him. What this means is that from July 10 2010, when the amendment took effect, no member of any political party can be a member of any State Independent Electoral Commission let alone its chairman. It also implies that by the application of section 200(1) of the Constitution (as amended) the 4th defendant already stood disqualified as chairman of KOGSIEC as far back as 2011.
72. In respect of the 5thdefendant, his membership of KOGISEC, which was still in force as at the time of 4th May 2013 election, as the evidence before me reveals, is a reward for his patronage and membership of the 3rd defendant. This is in addition to his earlier membership of Federal Hospital Management Board, a position he was said to have held for four years. Upon the amendment of Section 200(1) of the Constitution, the 5th defendant also stood disqualified from being or remaining a member of the 3rd defendant.
73. It has to be appreciated here that a body like KOGSIEC has a very special role to play in our constitutional democracy. It is the organ that is constitutionallyempowered “to organize, undertake and supervise all elections to local government councils within the state” (item 4 Third schedule to the Constitution (as amended).
74. The amendment of section 200(1) of the Constitution, in my humble view,is designed by the law makers to promote the principles of fairness, independence and transparency. It also expresses the notion of neutrality. These are not abstract notions. For instance the notion of independence reflects in the name of the 3rd defendant (Kogi State Independent Electoral Commission). As an umpire, Kogi State Independent Electoral Commission must not only be neutral but manifestly be seen to be so neutral. Given the centrality of these notions of neutrality and transparency, embedded in the work and functions of a State Independent Electoral Commission, it will be inappropriate to interpret section 200(1) of the Constitution (as amended) in a way to suggest that the chairman of such a commission can go completely out of his way, not only to join a political party but proceed to contest the primaries of an election under the umbrella of a political party and come back to organize an election involving his party and other political parties, as it shockingly happened in this case. And this is after the Constitution had been amended in terms of section 200 (1) of the Constitution (as amended). Any claim to neutrality, integrity, transparency and fairness in favour of such body headed by such a person goes to no issue. The truth is that, the Constitution has, by that singular act, been violated with a tincture of impunity.I, therefore, hold that the membership of the 4th and 5thdefendants of the 3rd defendant, including the contest of primaries by the 4thdefendant under the platform of the 9th defendant (PDP) compromised, irredeemably, the integrity and neutrality of the 3rd defendant to hold the May 4, 2013 local government election in Kogi State.The claim of the retirement of the 4th to 8thdefendants in February 2014 only begs the issue. It also shows that they were being clever by half, having waited to conduct the election before their retirement. By the time of the amendment of the Constitution in 2010, they already had their hands soiled with partisanship, as the evidence before me demonstrates, by which they stood disqualified from membership of the 3rd defendant. From the foregoing, I, therefore, hold that as at 4th May 2013, the 3rd defendant was not properly constituted in accordance with section 200(1) of the1999 Constitution of the Federal Republic of Nigeria (as amended).
75. The direct consequence of this is that all the acts and actions of the defendants in relation to the local government election conducted by the 3rd defendant on May 4, 2013 become a nullity. When a constitutional body like the 3rd defendant is not properly constituted as required by the relevant provisions of the Constitution, it is like a court or tribunal that is not properly constituted. Any process issued or trial conducted is a complete nullity ab initio. (See Madukolu v. Nkemdili (1962) 2SCNLR 341).Accordingly, I pronounce the election of 4th May 2013, conducted by improperly constituted commission, Kogi State Independent Electoral Commission (KOSIEC), the 3rd defendant a nullity. That is to say, the election is hereby treated as void as having never been conducted.
76. As regards the effect of this conclusion on the elected chairmen and councillors, there is no way those elected under the void election can be allowed to benefit from such flagrant breach of the Constitution. It is settled beyond any conjecture that one cannot put something on nothing and expect it to remain there. It will collapse (Macfoy v. UAC (1961) 3 NWR 145). So it is in this case.
77.In order to fill the vacuum that may be created by this conclusion, I hereby make an order directing that the most senior director of the local governments assume responsibility for each local government pending when another local government election is conducted.
Conclusion
78. Under our constitutional democracy, the Constitution is the supreme law, the grundnorm. (Section 1 (3) of the Constitution as amended). It is binding on all authorities and persons. This court has been given the responsibility of being the ultimate guardian of the Constitution and its values. Section 1 (3) of the Constitution (as amended) stipulates that if any action is inconsistent with the provisions of the Constitution, the court will be obliged to declare such an unconstitutional and invalid as I have done in this case. The primary duty of the court is to uphold the sanctity of the Constitution and the law which must be applied impartially and without fear, favour and prejudice.
Hon. Justice Alaba Omolaye-Ajileye
Judge
08/12/2014.
Counsel Representation
Ocholi James, SAN for the claimants(Isaac Ekpa Esq, and S.J. Akos (Miss) with him).
P.A. AkuboSAN for the 1st – 8th Defendants (J.A. Akubo Esq; D.I. Ugbe, Esq; L.C. Ani (Mrs) Alaji Jacob Esq and U.S. Ovaasa) with him).
EmejeAruwa Esq for the 9th Defendant (Alex Audu Esq with him).
