⦿ CASE SUMMARY OF:
Amaechi v. INEC & Ors (2008)
Rt. Hon. Rotimi Chibuike Amaechi
Independent National Electoral Commission;
Peoples Democratic Party
⦿LEAD JUDGEMENT DELIVERED BY:
George Adesola Oguntade. J.S.C.
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 contestants -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.
⦿ ISSUE(S), inter alia:
- Whether there exists cogent and verifiable reason to warrant the substitution of Plaintiff’s name with that of any other person in breach of Section 34 of the Electoral Act, 2006 and if not whether the purported substitution of Plaintiff s name is not null and void?
- Whether having regard to the concept of lis pendens and the fact that at the material time of the election, plaintiff being the only lawful candidate of the People’s Democratic Party, he ought not to be declared the winner of 14th April, 2007 general election in Rivers State.
Judgement was given in favour of Amaechi, the Court pronounced:
- “I am satisfied that the reason given by PDP as ‘error’ for substituting Omehia for Amaechi did not meet the requirement of section 34 of the Electoral Act.”; “I mentioned earlier that P.D.P did not provide cogent and verifiable reason for the attempt to substitute Amaechi with Omehia. Not having done so, Amaechi who had acquired a vested right by his victory at the primaries and the submission of his name to INEC was never removed as P.D.P’s candidate. If the law prescribes a method by which an act could be validly done, and such method is not followed, it means that that act could not be accomplished. What P.D.P did was merely a purported attempt to effect a change of candidates. But as it did not comply with the only method laid down by law to effect the change, the consequence in law is that the said change was never effected. In the eyes of the law, Amaechi’s name earlier sent to INEC was never removed or withdrawn. It is a purely an irrelevant matter whether the candidate in the election who was improperly allowed to contest wins or loses. The candidate that wins the case on the judgment of the court simply steps into the shoes of his invalidly nominated opponent whether as loser or winner.”; “If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election.”;
- “Having held as I did that the name of Amaechi was not substituted as provided by law, the consequence is that he was the candidate of the P.D.P. for whom the party campaigned in the April 2007 elections not Omehia and since P.D.P. was declared to have won the said elections, Amaechi must be deemed the candidate that won the election for the PDP. In the eyes of the law, Omehia was never a candidate in the election much less the winner. It is for this reason that I on 25/10/2007 allowed Amaechi’s appeal and dismissed the cross-appeals. I accordingly declared Amaechi the person entitled to be the Governor of Rivers State. I did not nullify the election of 14/04/2007 as I never had cause to do so for the reasons earlier given in this judgment.”
178(2) and 285(2) of the 1999 Constitution;
Sections 34 and 85 of the Electoral Act, 2006;
Section 147 of the Electoral Act, 2006;
Paragraph 27 of the First Schedule to the Electoral Act 2006;
Sections 144 and 145 of the Electoral Act 2006;
Section 6(6)(a) of the 1999 Constitution;
⦿ NOTABLE DICTA
The suit was dismissed but nothing was decided therein as to whether or not Amaechi was indicted. It would seem from the final judgment of the court below that it was the said judgment of Kuewumi J. that was relied upon to arrive at the conclusion that Amaechi was indicted. Was the court below correct to have received the said judgment of Kuewumi J in evidence? Was the court below correct to have taken the said judgment as proof of indictment of Amaechi? Could the said judgment, which was delivered on 30-3-2007, be the basis of the substitution of Omehia for Amaechi which was done on 02-02-2007? The answers to all the three questions must be in the negative. – Oguntade JSC, Amaechi v. INEC (2008)
Where such Inquiry or tribunal finds a citizen liable or culpable of a conduct bordering on criminality, and the Federal or State Government accepts such report through a published white paper, it is still not good enough to deny a citizen eligibility to the office of Governor unless and until he is afterwards prosecuted in a court of law and found guilty. – Oguntade JSC, Amaechi v. INEC (2008)
I am surprised therefore to see that INEC pleaded that Amaechi was indicted by EFCC and that the report on the indictment was accepted by the Federal Government. That procedure is not backed by any law in force. Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences. – Oguntade JSC, Amaechi v. INEC (2008)
The court below should simply have followed its decision and the decision of this court in the Araraume case. The implication of my finding is that this appeal ought to be allowed. I hold that the substitution of Omehia for Arnaechi was not done in accordance with the law. I accordingly set aside the judgment of the court below which was wrongly premised. – Oguntade JSC, Amaechi v. INEC (2008)
To hold that section 308 can be invoked in a matter relating to the eligibility for a political office where the tenure of such office has been set out in the Constitution will translate into denying to a plaintiff his right of access to the court. It is only in a case where a deferment of plaintiff’s right of action is not likely to destroy this Res in the suit that section 308 can be invoked. In this case, to ask Amaechi to wait till the end of Omehia’s tenure of office as Governor before pursuing his suit is to destroy forever his right of action. – Oguntade JSC, Amaechi v. INEC (2008)
That is not the way of the court. A court must shy away from submitting itself to the constraining bind of technicalities. I must do justice even if the heavens fall. The truth of course is that when justice has been done, the heavens stay in place. – Oguntade JSC, Amaechi v. INEC (2008)
A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election. – Oguntade JSC, Amaechi v. INEC (2008)
The political parties in Nigeria are the creation of the Constitution. They therefore have an important stake in flying high and loftily the banner of the rule of law. In this case the P.D.P did not live up to that standard. It did everything possible to subvert the rule of law, frustrate Amaechi and hold the court before the general public as supine and irrelevant. Sadly INEC and Omehia also did the same. I am not complaining about the fact that P.D.P had followed a wrong approach to substitute one candidate for another. That may well be put down to a honest mistake as to the approach to be followed in doing so. – Oguntade JSC, Amaechi v. INEC (2008)
The claim of the respondents that section 308 inures to the benefit of the 2nd respondent has no merit whatsoever. This is so because the wrong upon which the Appellant based his claim had been in existence before the election. His case was clearly a pre-election matter. It is also pertinent to observe at this stage that at the time the 2nd respondent contested the election, his substitution for the Appellant had been voided by the Federal High Court. That decision was valid and subsisting until it was set aside on appeal. At the time the election was held, that decision was not set aside and therefore subsisting. It goes without any argument that the 2nd respondent’s participation in the election was clearly an illegal act. In my judgment the 2nd respondent cannot be heard to contend that he wants to enjoy the benefit of his illegality. – Katsina-Alu JSC, Amaechi v. INEC (2008)
A petition as to who is validly elected as Governor can only arise after an election, and in this case, as I have already pointed out, the Appellant’s case arose before the election of 14 April 2007 involving an intra-party dispute and consequently the Appellant could not go before an election tribunal to seek an order of re-election. That apart, I think it would be absurd to cancel an entire election conducted between several parties for the sole reason that there was crisis within the winning party. – Katsina-Alu JSC, Amaechi v. INEC (2008)
The law is an equal dispenser of justice and leaves no one without a remedy for his right. – Katsina-Alu JSC, Amaechi v. INEC (2008)