Chief Okechukwu Ambrose Ahiwe & 1ORS Vs. Independent National Electoral Commission.  Respondent & 2ors, Judgment Delivered by Helen Moronkeji Ogunwumiju JSC, IN SC/CV/1250 / 2023

SC/CV/1250 / 2023

JUDGMENT
DELIVERED BY HELEN MORONKEJI OGUNWUMIJU, JSC

I have read in draft the judgment just delivered by my learned brother Uwani Musa Abba Aji, JSC. I agree with the view that this appeal lacks merit and should be dismissed. I will add a few words.

This is an appeal by the Appellants against the concurrent findings of facts and law against the decision of the Court of Appeal Coram: *Hon. Justice Habeeb Adewale Olumuyiwa Abiru, JCA ( as he then was), Hon. Justice Abubakar Mahmud Talba, JCA and Hon. Justice Hannatu Azumi Laja-Balogun, JCA ( the court below) delivered on the 2nd December,2023 in Appeal No: CA/OW/EP/GOV/AB/31/2023 between CHIEF Okechukwu Ambrose Ahiwe & Anor v. Independent National Electoral Commission & Ors.

The Appellants had, by their said Appeal, appealed against the judgement of the ruling and decision of the Abia State Governorship Tribunal Holden at Umuahia Coram: Hon. Justice H.T.D Gwadah (Chairman), Hon. Justice Omolara Adeyemi ( Member 1) and Hon. Justice Boniface .S. Ngyou ( Member 2) in Petition No: EPT/AB/GOV/01/2023 ( Between: Chief Okechukwu Ambrose Ahiwe & Anor v. Independent National Electoral Commission & Ors ) delivered on the 6th day of October,2023.

By the said judgment of the Court below, the said Appeal filed against the judgment of the Honourable Tribunal was dismissed, and the judgment of the Election Petition Tribunal for Abia State sitting in Umuahia, Abia State and delivered on the 6th of October, 2023, was affirmed.

The facts leading to this appeal are that on the 18th day of March 2023, the Independent National Electoral Commission ( INEC), the 1st Respondent herein, conducted an election for the Governorship seat of Abia State. On the 22nd day of March, 2023, INEC declared the 2nd Respondent who was sponsored by the 3rd Respondent as the winner of the election. The 1st Appellant who was sponsored by the 2nd Appellant came second.

In the Appellants’ Petition at the Tribunal, they raised three grounds for its presentation. The grounds are set down in paragraph 24 thereof as follows:

  “24. The Petitioners state that the Grounds upon which this Petition is based are as follows:

1. a) The 2nd Respondent was at the time of the election not qualified to contest the election.
2. b) The 2nd Respondent was not duly elected by majority of lawful votes cast at the election.
3. c) The election of the 2nd Respondent was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act,2022.”

In paragraph 162 of the Petition, the Appellants stated the reliefs they sought from the Tribunal.

In order to avoid prolixity, reliefs “a” to “c” which are indeed the principal reliefs are reproduced here under, viz:

102. “Wherefore the Petitioners pray jointly and severally against the Respondents as follows:

1. a) That it may be determined that at the time of the Abia State Governorship Election of 18th March, 2023, the 2nd Respondent was not qualified to contest the said election.
2. b) That it may be determined that all the votes recorded for the 2nd Respondent in the said election are wasted votes as a result of the non-qualification of the 2nd Respondent.
3. c) That it determined that on the basis of the remaining votes after discounting the votes recorded for the 2nd Respondent, in the said election, the 1st Petitioner has a majority of lawful votes and has satisfied the constitutional requirement by obtaining the required spread, that is 25% of votes in each of at least two thirds (2/3) of all the Local Government Area of Abia State.”

The Appellants identified four (4) issues for determination in the brief settled by George Eche Ikemu, Esq., and they are set out below as follows:

1. Whether the lower Court was right when it affirmed the Honourable Tribunal’s decision that the Appellants failed to prove that the 2nd Respondent was not qualified to contest the Elections? (Distilled from grounds 1,2,3,5,7,10 & 21 of the Notice of Appeal).

2. Whether the lower Court was right when it affirmed the striking out by the Honourable Tribunal of paragraphs 30-44 of the Petition on the ground that they are pre-election complaints? ( Distilled from grounds 2,4,8,18 & 19 of the Notice of Appeal).
3. Whether the decision of the lower Court on the Matters of Pleadings, Evidence and Formulation of Issues for determination in an Appeal are correct in Law and not perverse? (Distilled from grounds 9,11,12,13 & 14 of the Notice of Appeal).
4. Whether in the particular circumstances of this case, the Appellants can be rightly said to have had a fair hearing and or a fair trial at the Honourable Tribunal? (Distilled from grounds 15, 16, 17 & 20 of the Notice of Appeal).

Similar issues were identified in the 1st Respondent’s brief settled by E.A John-Nwosu, Esq., in the 2nd Respondent’s brief settled by Omosanya Popoola, Esq., and in the 3rd brief settled by Dr. Onyechi Ikpeazu, OON, SAN. There’s no doubt that issues 1 & 2 which are related and when combined together suffice to determine this appeal.

What the Appellants asked the Tribunal & Lower Court to do was to hold that the 2nd Respondent was not a member of the 3rd Respondent when he ran for the office of Governor of Abia State and that being an uncontroverted fact, he could not have been sponsored by the 3rd Respondent. In other words, the Appellants’ contention is that there was a breach of Section 177 (c) of the 1999 Constitution of the Federal Republic of Nigeria (as altered) hereinafter referred to as 1999 CFRN. While it is agreed that with respect to the membership of a political party, it is settled that it is a domestic affair of a political party but Counsel submitted that this Court and the Court below have both been consistent in holding that a challenge to membership and sponsorship of a candidate by a political party can be ventilated before the Tribunal. This is because section 177 (c) of the 1999 CFRN (as altered), regards the subject of membership and sponsorship as a qualifying requirement and equally, Section 134 (1) of the Electoral Act, 2022 donates locus standi to a candidate in an election if he wishes to contest this issue at the Tribunal. Counsel cited ENGR. NELSON OSELOKA ONUBOGU V. IFEYINWA ANAZONWU & 2 ORS (2023) LPELR- 60288 (SC).

Counsel argued that once the issue of membership is raised, the onus would then shift to the Respondent to adduce minimal evidence to show he was a member of the political party at the material time in question. Counsel argued that it was wrong of the two lower courts to find that the Appellants had conceded the membership of the 2nd Respondent in the 3rd Respondent’s brief in paragraphs 30-44 of their Petition. Counsel insisted that the 2nd Respondent having not tendered his membership card, shown his name in the party register, it means there’s no evidence to show that indeed the 2nd Respondent was a member of the 3rd Respondent. The main claim of the Appellants, which they sought to prove through PW2 and Exhibits P42 and P43 is that the time of the election, even though the 2nd Respondent had defected from APC to LP, he was still de jure a member of the APC even if de facto he was a member of LP. Counsel for the Appellants maintained that the 3rd Respondent is in violation of Section 77 (2) – (3) of the Electoral Act, 2022, by failing to make its register available 30 days before the primary election of the party. Counsel submitted that the lower court failed to appreciate that the allegation or question as to whether or not the 2nd Respondent who had contested the election, is a duly registered member of the 3rd Respondent in compliance with Section 77 (2) – (3) of the Electoral Act, 2022, is founded on the constitutional requirement of membership of political party as a qualifying factor under Section 177 (c) of the 1999 CFRN (as altered) and Section 134 (1) (a) of the Electoral Act,2022 and so outside the internal affairs of the 3rd Respondent.

The Respondents’ all argued that the Tribunal was correct when it struck out paragraphs 30-40 of the Petition on the ground that the challenge to the 2nd Respondent’s qualification was founded principally on his membership of the 3rd Respondent, outside the ambit Constitution. This is an internal affair of the third Respondent over which the Tribunal had no jurisdiction. Indeed, the foundation of the Appellant’s challenge in this regard was laid in paragraphs 30, 32 and 33 of the Petition, where the Appellants pleaded thus:

“30. The Petitioners state that the second Respondent was not a registered card carrying member of the third Respondent political party at the time of the conduct of the election, and his name was not contained in the membership register of the third Respondent, which the third Respondent was required by law to submit to the first Respondent 30 days before the conduct of it’s primary election; thus, rending the candidacy of their candidate null and void for the purposes of the 18th March, 2023, Abia State Governorship Election.

32. The Petitioners state that the second Respondent was not qualified to contest the election on the platform of the Labour Party (LP) under the law, in that the second Respondent’s name was not in the register of members of the Labour Party, ought to have been submitted to the first Respondent 30 days before the Labour Party purportedly conducted its Gubernatorial Primary Election in Abia State in 2022, that purportedly nominated the second Respondent as the Labour Party’s Governorship candidate for Abia State Governorship Election that held on 18th March,2023.
33. Notice is hereby given to the first, second, and third Respondents to produce at the trial. The third Respondent’s membership register containing the name of the second Respondent submitted to the first Respondent 30 days before the third Respondent’s Governorship Primary Election for Abia State”.

 It was contended that the Appellants, under the guise of employing the combined provisions of Section 177(c) of the 1999 CFRN  (as altered), which requires a candidate to be sponsored by a political party, and Section 134(a) of the Electoral Act 2022, which allows a Petitioner to question an election on the ground of qualification of the person elected, have strayed into the realm of a political question which is not justiciable.

 Learned Respondents’ Counsel submitted that it must be stressed that the Appellants in this case are not contending that the second Respondent did not in fact participate at all stages of the election. It is only if they did that the limited jurisdiction recognized by Section 285(13) 1999 CFRN (as altered) might arise. Their case is founded strictly on membership. That is to say, the only contention of the Appellants is that the second Respondent, who was of APC, defected and contested the primary election and the general election on the platform of the third Respondent and won, when he was not a member of the third Respondent. They also contend that the name of the second Respondent was not in the third Respondent’s register of members at least 30 days before the third Respondent’s primary election. Respondents’ Counsel submitted that in as much as the Appellants had stated that the second Respondent was a candidate of the third Respondent, they had practically conceded that the third Respondent projected the second Respondent as its sponsored candidate. In this context, the issue of independent candidature did not arise. Counsel argued that the Appellants were wrongly trying to bend the provisions of Section 77 of the Electoral Act, 2022 to conform with Section 177(c) of the 1999 CFRN (as altered).

Learned Respondents’ Counsel further argued that in a bid to sustain an otherwise deplorable situation, the Appellants have sought solace in Sections 14(1) and 228(a) of the 1999 CFRN (as altered) and Sections 77 (2) and 82 (1) and 82 (1) and 84 (1) of the Electoral Act, 2022. Section 14 (1) of the 1999 CFRN (as altered) prescribes that the “Federal Republic of Nigeria shall be a state based on the principles of democracy and social justice”. This section, besides not being justiciable, does not deal with the issue of membership of a political party, and neither does it deals with the qualification for election. Besides, Section 14(1) of the 1999 CFRN (as altered) comes under Chapter 2, dealing with Fundamentals Objectives and Directive Principles of State Policy. With respect to Section 228(a) of the 1999 CFRN (as altered), it is only an enabling provision which empowered the National Assembly to make such laws with respect to elections, one of which is the Electoral Act, 2022. The Supreme Court made it categorical that the National Assembly lacked the vires to add to or modify the qualification provisions already covered by the 1999 CFRN (as altered). See AG ABIA v. AG FEDERATION (2002) 6 NWLR (PT. 763) 264 AT 391 TO 392.

OPINION

My Lords,  paragraph 36 of the Petition by the Appellants states inter alia, that the second Respondent defected to the third Respondent a few days before and stood for election at the primary election of the third Respondent. The complaint in itself means that the Appellants conceded that the second Respondent was no longer a member of the PDP and had joined Labour Party. The other case being made by the Appellants is that the second Respondent’s name was not on the register of Labour Party, which is the political party that sponsored him.

There is no requirement of the 1999 CFRN (as altered) to the effect that a candidate may only qualify as such if his name was in the register of voters of the political party which sponsored him or her, at least 30 days before the primary election. Being extraneous to the 1999 as altered, it will amount to an atrocious violation of the constitution for a Court to read the provision of Section 77 of the Electoral Act,2022 into the Constitution and bend same to conform to Section 177 (c) of the 1999 CFRN (as altered). See AG ABIA V. AG FEDERATION (2002) 6 NWLR (PT.763) 264 AT 368, ALLIED PEOPLES MOVEMENT V. INEC (2023) 9 NWLR (PT. 890) 419 AT 441

There is no doubt with respect to Section 77(2) and (3), all that it required was for a political party to “maintain a register of its members in both hard and soft copy”. Sub-section 3 further requires the political party to “….make such register available to the commission not later than 30 days before the date fixed for the party primaries, congresses, or convention.” The section did not provide much as the Appellants may wish that it is so, that only those whose names are on the registers within 30 days to the primaries, that may qualify to contest the primaries. Sadly, it is this non-existent requirement even for the primary election that the Appellants wish to donate to and read into the 1999 CFRN (as altered) and to use the same to void the general election.

The Appellants were not aspirants within the ambit of Section 84(14) of the Electoral Act, 2022. The entire section that deals with nomination is pre-election in context. Thus their sub-section (13) provides that the name of a political party in breach of Section 84 shall not be on the ballot, the right to enforce same ensures to an aspirant within the context of Section 84(14) of the Electoral Act 2022 and Section 285 (14) of the 1999 CFRN (as altered). The Appellants are excluded from such enterprise.

My Lords, it is indeed the prerogative of a political party to determine who its members are. See ANYANWU V. OGUNEWE (2014) 8 NWLR (PT.1410) PG. 437.

The Tribunal and the Court of Appeal were well guided by the very recent decisions of the superior Courts in *UDOFIA V. ENANG (2023) LPELR – 59447 (CA) and ABDULLAHI V. ARUGUNGU (2023)

 LPELR – 59950 (SC), which reinforced the same position. See also the very recent Supreme Court decision in ENANG V. ASUQUO (2023) 11 NWLR (PT. 1896) 510 AT 531 para F-G, where this Court held as follows:

  “This court has consistently stated in a plethora of authorities that membership of a political party is a matter that is strictly within the domestic affairs of a political party, and the courts have no jurisdiction to determine who the members of a political party are. It is not justifiable. Black’s Law Dictionary, 8th edition, defines justifiability this: “The quality or state of being appropriate or suitable for adjudication by a Court”.

I also rely heavily on JIME V. HEMBE (2023) LPELR – 60334 (SC) where this Court succinctly held thus:

“There is no doubt from the evidence before the trial Court that the first Respondent moved from party to party in search of a place to perch in order to secure a nomination for the 2023 Gubernatorial election in Benue State. While such an act might have moral implications, there is no provision in the Electoral Act that precludes a candidate from participating in more than one primary. What is forbidden is his nomination by more than one political party at the same time and to his knowledge” Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC ( PP. 32-33 Paras A-D).

In that case, on page 28-29 the court also held that;

“It is not the duty of the court to encourage practices that do not support democratic principles, but it is also not the duty of the Court to deliberately misapply the law in order to uphold moral democratic principles, outside the contemplations of the legislation. The first Respondent in *JIME V. HEMBE ( SUPRA) was running from party to party, hopping from APC to NNPP to Labour Party. Unfortunately, the law as it stands does not sanction his behaviour so long as only one party finally nominates him. In this case, the Appellant changed his case from double nomination to double participation midstream. Be that as it may, he was not able to prove double participation in two primaries of two different political parties by the first Respondent, and neither was the Appellant able to prove double nomination of the first Respondent by two political parties to make the latter fall foul of Section 35 of the Electoral Act”.

Esentially, the Appellants case was fixated on the alleged non-submission by the third Respondent of its register of members as was borne out by the paragraph 38 of the petition where they pleaded thus:

“38.  The Petitioners states and shall contend at the hearing of this petition that unless it is shown that the name of the second Respondent was on the membership register submitted by the third Respondent to the first Respondent, 30 days to the date of the primary election of the third Respondent in compliance with the statute, the third Respondent cannot under the electoral law and the 1999 constitution (as amended) validly and lawfully sponsor the second Respondent for the Abia State Governorship Election held on 18th March, 2023 and that the purported sponsorship of the second Respondent by the third Respondent is invalid, null and void.”

Apart from my above reasoning, I adopt wholesale the reasoning of my learned brother of the Court of Appeal Abiru JCA on pg. 9054-9055 of the record as follows:

“It is elementary that in the interpreting of a statute, the duty of a Court is to discover the intention of the lawmaker, and in so doing, it must consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter – Aliyu vs Namadi (2023) LPELR 59742 (SC), Abdullahi Vs Argungu (2023) LPELR 59950 (SC), Carnation Registrars Ltd Vs The President, National Industrial Court of Nigeria (2023) LPELR 60102(SC). It is also elementary that in interpreting a statute, nothing is to be added to or taken from the provisions – Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (PT 1380) 249, Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (PT 1418) 137. In Alagbaoso vs INEC & ORD (2021) LPELR 59702(SC), Garba, JSC, succinctly explained the two principles thus:

“Provisions of a statute or law which are clear, express, precise, and unambiguous should never be subjected to interpolations and/or glosses by the importation into or exportation of any words or extraneous situations not provided for or even envisaged by the prohibitions… As demonstrated in the lead judgment, such clear, precise, and unambiguous provisions do not call for interpretation, but application to the facts of a given case in such a way that the plain and unequivocal, intendment/intention of the legislation expressly stated therein would not be whittled down or altered to suit a particular interest. The proper application of the provisions to any given set of facts would not and cannot lead to an ambiguity since the words deliberately and precisely chosen, used, and employed by the legislature are in themselves clear and unambiguous in expressing the real intention, purport, and aim of the provisions. The duty of the court is to apply the provisions as they are and not import interpretation or construction that would import into, add to, take out, or subtract from the provisions, thereby altering or amending the provisions to fit into particular circumstances or situations that are totally alien thereto. The Courts have no direct power and authority or jurisdiction to legislate under any guise in order to fill in the gaps that might appear in statutes or laws enacted by the legislature, whose constitutional province it is to review, alter, or amend the provisions of such statutes or laws. The Courts only expound but cannot expand the clear, express, unambiguous, and mandatory provision of a statute or law in the name of interpretation or construction, which the provisions do not call for…”

 Applying these principles to the above provisions, it is obvious that the requirements of a political party maintaining a register of members and making it available to the Independent National Electoral Commission 30 days before the date fixed for the party primaries, congresses, or conventions is purely for regulatory purposes. This is more so as there is no sanction provided in the Electoral Act for a political party that fails to comply with the provisions. The submitted register of members is not, and cannot be, conclusive on who are the members of a political party at the time fixed for the party primaries, congresses, or convention as there is nothing in the provisions banning political parties from taking on new members. After the submission of the register of members to the Independent National Electoral Commission – Enang vs Asuquo (2023) 11 NWLR (Pt 1896) 510 at 536G.

Neither is there anything in the provisions debarring such new members who joined after the submission of the register of members from participating in the primaries, congresses, or convention of the political party conducted thereafter. The Courts recognized that it is within the prerogative of political parties to grant waivers to such people to contest their primary elections if it is considered in the best interest of the party to do so –  Musa vs PRO (1981) 2 NCLR 763 at 769, Agi vs PDP (2017) 17 NWLR (PT. 1595) 386 at 468F-G and Enang vs Asuquo supra. These are issues clearly touching on the management and running of the political party and within the internal affairs of the political party – Peoples Democratic Party vs Ezeoriwuka (2018) 3 NWLR (PT 1606) 187, Ibrahim vs Abdallah (2019) 7 NWLR (PT 1701) 293 at 311-312H-D, Udofia vs Utuk (2023) LPELR 59646 (CA)”.

In conclusion and summary, this is an appeal against concurrent findings of facts by the two courts below. There is no doubt that the grounds of disqualification contained in paragraph 30-44 of the petition are grounds of allegations of disqualification which were founded on pre-election issues outside the purview of the Tribunal. The argument of the Appellants is that even though the second Respondent had joined the third Respondent’s political party, his name was not submitted to the third Respondent before the primary election. The Appellants’ claim is that the second Respondent was not a member of a political party and was not sponsored by a political party. Thus, the Appellants’ challenged the second Respondent’s qualification mainly because of his membership of the third Respondent. There is no doubt that the Appellants had raised purely political questions, not meant for the courts. Section 177(c) of the 1999 CFRN (as altered) is meant to prohibit independent candidature. Where a party had embraced a candidate, sponsored him for election, the methodology by which the candidate was nominated by his party is not justiciable. See UDOFIA V. ENANG (SUPRA); ABDULLAHI V. ARGUNGU (SUPRA) and *ENANG VS ASUQUO (SUPRA).

The second Respondent had defected to the Labour Party and won the election by 175,467 votes over the PDP candidate, who got 88,529 votes. The Labour Party was in a position to determine whether the second Respondent was its member. There was no breach of law by the second and third Respondents on the issue of membership. The Appellants have failed to prove that at the time of the election, the second Respondent was not qualified to contest the election. The fact that the second Respondent was jumping from one party to another until he found harbour is not contrary to the Electoral Act or the Constitution. In any event, it is another aspirant at the party’s primaries that can complain. The second Respondent cannot be legally faulted for finding succor with Labour Party after he lost the primaries at PDP so long as Labour Party had accepted him. There is no doubt that the second Respondent was a member of the third Respondent at the time of election. See JIME V. HEMBE (SUPRA).

 Finally, grounds 11, 13, 14, and 16 on non-compliance and corrupt practices were abandoned to chase shadows. That was the finding of the two courts below. In this case, the second and third Respondents scored 175,467 votes, while the opponents scored 88,529 votes. Those votes were not challenged. I agree with the two courts below that there is absolutely no profound legal reason to subvert the will of the majority of the electorate.

This Appeal is wholly without merit and is hereby dismissed. I affirm the judgment of the Court below in Appeal No: CA/OW/EP/GOV/AB/31/2023, delivered on 2/12/2023. I abide by the order as to costs.

Appeal Dismissed.

*HELEN MORONKEJI OGUNWUMIJU,

JUSTICE, SUPREME COURT.

APPEARANCES:

Alade Agbabiaka, SAN with Dr. Joseph Nwobike, SAN, Prof. Paul Ananaba, SAN, Uche Iheduwa, SAN and Chief Theo Nkire,Esq. For the Appellants.

J.T.U Nnodum,SAN with K.C Nwufo, SAN and E.A John Nwosu, Esq. for the 1st Respondent.

A.J Owonikoko, SAN with Prof. J.O. Olatoke, SAN, Chief Hakeem Afolabi, SAN, Ken Ahia, SAN and Olusola Dare, Esq. For the 2nd Respondent.

Dr. Onyechi Ikpeazu, SAN, with Chief Umeh Kalu, SAN, Dr. Sonny Ajala, SAN, Echezona Etiaba, SAN and Valentine Offia, Esq. For the 3rd Respondent.