⦿ CASE SUMMARY OF:
CHARLES CHIWENDU ODEDO v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2008) – SC
⦿ LITE HOLDING
For a party to be substituted in an election in accordance with section 34 of the Electoral Act 2006, cogent and verifiable reasons must be provided.
⦿AREA OF LAW
Substitution of candidate
Cogent and verifiable reason
Charles Chiwendu Odedo
Independent National Electoral Commission & Anor (2008)
(2008) JELR 46714 (SC)
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Chief (Mrs) A. J. Offiah
* FOR THE RESPONDENT
– Mr. Emonye Adekwu
– Mr. Arthur Okafor
– Mr. Amobi Nzelu
⦿ FACT (as relating to the issues)
The case fact as narrated by Niki Tobi JSC:
Charles Chiwendu Odedo, the appellant, a member of the Peoples Democratic Party bearing the acronym, PDP, contested the primary elections, along with ten others. That was on 24th November, 2006. It was for the Idemili North and South Federal Constituency in Anambra State. He won. Following the result of the election, the PDP submitted his name to the Independent National Electoral Commission (INEC), the 1st respondent. That was on 20th December, 2006. INEC duly published the name of the appellant as a person who was cleared to contest the election. The necessary documentation was completed by INEC and the appellant thought the coast was free or clear for him to contest the election with other political parties. But that was not to be. He had a surprise. I think he also had a shock. On or about 2nd February, 2007, appellant got information that his name was substituted with that of Obinna Chidioka who appears in this appeal as party to be heard.
Aggrieved, appellant went to the Federal High Court.
The learned trial judge, Faji, J, did not see his way clear in granting the reliefs sought by the appellant. He refused them. In the concluding paragraph of his judgment, the trial Judge said at page 314 of the Record: “To my mind, this constitutes a cogent reason. It is also verifiable as per plaintiff’s exhibit 5 which at all material times was in the custody of the 1st Defendant. I therefore find that the plaintiffs action lacks merit. The substitution was carried out in line with section 34 of the Electoral Act. The reliefs in the motion cannot therefore be granted. They are accordingly dismissed.”
Dissatisfied, the appellant went to the Court of Appeal. There was a split decision of the panel of Mikailu, Denton West and Bada, JJ.CA. While Mikailu and Bada, JJ.CA struck out the appeal on the ground that it was a mere academic exercise, Denton-West, JCA parted ways with her learned brothers. She allowed the appeal and struck out the cross appeal. In his conclusion Mikailu, JCA said at page 562 of the Record: “In the final conclusion, it is clear in view of the above that the appeal now pending has become an academic exercise in view of the fact that the election was already conducted and an election tribunal which is in the appropriate venue, having been set up. Consequently the appeal is struck out as a mere academic exercise.” In her lone voice, Denton- West, JCA said at page 610 of the Record: “Finally in the interest of justice, equity, fair play and upon the totality of my above reasoning and conclusions, I hereby find the appeal as not lacking in merit and it succeeds. The cross appeal is lacking in merit and is accordingly struck out”.
1. Whether the Court of Appeal in its majority judgment was right in holding that the Appellants appeal in these circumstances was a mere academic exercise.
2. Whether the Appellant is not entitled to judgment on the merits of the case.
3. Whether in the circumstances of this appeal, this is not a proper case in which the Supreme Court should exercise its powers under section 22 of the Supreme Court Act to hear the case on its merit in view of the failure of the Court of Appeal to do so in its majority judgment.
⦿ RESOLUTION OF ISSUE(S)
1. The Supreme Court held that the appeal is not a mere academic exercise.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. Is it a cogent or verifiable reason that the appellant’s name was sent “without enough information”? If at the time, the name was sent, the PDP did not know the reasons- for sending the name of the appellant, could the -party not have given the reasons in Exhibit B. What is the meaning of “without enough information” in Exhibit B. In my view, the letter (Exhibit B) did not comply with the provision of section 34 (1) and (2) of the Electoral Act.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. By section 22, the Supreme Court has the power to determine the real issue in controversy and that in this appeal is, whether section 34 (1) and (2) of the Electoral Act, 2006 was complied with in the substitution of the appellant with Mr. Obinna Chidioka. A rehearing on the part of the Supreme Court means a rehearing on the Record as if the proceedings had been instituted in the court. If any set or category of case needs the application or invocation of section 22 power of the Supreme Court, it is election cases, because of the fact that they are very much liable to time in the sense that time is their very essence.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Tobi JSC
In the light of the fact that Obinna Chidioka is enjoying a term in the House of Representatives and the appellant is languishing at home, it will meet the justice of this case by invoking its section 22 power, and that is what I want to do now, particularly when there are enough materials to do so. If I have come to the conclusion in this judgment that the substitution was not in compliance with section 34 (1) and (2) of the Electoral Act, 2006. And the consequence of the non compliance is a nullification of the purported election of Obinna Chidioka to the House of Representatives. The purported election based on a primary in which Obinna Chidioka scored only 6 votes is hereby nullified. In his place, the appellant who scored the highest votes of 397 is declared competent to contest the election in the constituency. And I declare the appellant to contest the election on the platform of the PDP in respect of the Idemili North and South Federal Constituency, Anambra State. This is a consequential order flowing from the reliefs sought by the appellant. I award N50,000.00 costs in favour of the appellant.
⦿ REFERENCED (STATUTE)
Section 22 Supreme Court Act. The section provides as follows: “The Supreme Court may, from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the court below to inquire into and certify its finding on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit to the court below for the purpose of such rehearing or may give such other direction as to the manner in which the court below shall deal with the case In accordance with the powers of that court.”
Section 34 Electoral Act 2006
Section 221 of the Constitution of the Federal Republic of Nigeria says: “S. 221, No association, other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at any election.”
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
I now go to-the merits of the appeal and that takes me to what is an academic matter. In Plateau State v. Attorney General of the Federation (2006) 3 NWLR (Pt.967) 346, I said at page 419: “A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity”. An academic issue or question is one which does not require answer or adjudication by a court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issues in the litigation because it is spent as it will not enure any right or benefit on the successful party. – Tobi JSC. Odedo v. INEC (2008)
Equity will not allow the respondents to hold the appellant to ransom. Waiver, a very loud principle of equity will certainly come to the rescue of the appellant. – Tobi JSC. Odedo v. INEC (2008)
In determining whether the conditions surrounding an appeal before the Supreme court are conducive to the exercise of its general power under section 22 of the Supreme Court act as if the proceedings had been instituted and prosecuted before it as a court of first instance, the court will consider the followings: (a) The Availability before it of all the necessary materials on which to consider the request of the party. (b) The length of time between the disposal of the action in the court below and the hearing of the appeal at the Supreme Court. (c) The interest of justice to eliminate further delay in the hearing of the matter and minimize the hardship of the party. – Tobi JSC. Odedo v. INEC (2008)
Our legal system frowns at acts of self help, the only means through which the courts can protect its independence and integrity is to disallow the abuse of its processes and orders. To my mind the action of the 1st respondent, (INEC) amounts to an act of lawlessness and disrespect to the rule of law. The election conducted by the 1st Respondent, when this action was pending, was of no moment and it can not deprive the appellant his right to have his case determined in the court of law. – Coomassie JSC. Odedo v. INEC (2008)
The same approach adopted by the Respondents in Amaechi’s case was also adopted in the instant case. The belief was that if elections were conducted that would put an end to the appellants case or “kill his case”. The jurisdiction of ordinary court in pre-election matters is sacrosanct and the holding of such an election when the action was pending would not deprive the ordinary court of its jurisdiction to conclude the matter, even to the appeal court. It is to be noted that the appellant in this case took steps immediately he was aware of this substitution. He instituted this action before the conduct of the election and had been steadfast, believing in the judicial process that justice would be done. He did not stand by and allowed the party to be heard to fight for the election and therefore seek to take the benefit of the result of the election by proceeding to seeks for the enforcement of his right after the election. All what I have been labouring to state is that he did not sleep over his right. If this action had been instituted after the conduct and declaration of the election I would have held that the jurisdiction of the trial court to hear the pre-election matters has been over taken by event. – Coomassie JSC. Odedo v. INEC (2008)
It is the political party that participated in the conduct of an election that is the winner or the loser and not the Candidates sponsored by the political parties sometimes, the goodwill of a candidate being sponsored in an election may contribute to the victory of the political party in an election. Section 221 of the 1999 Constitution of Nigeria does not recognize an Independent candidate contesting in our elections. – Coomassie JSC. Odedo v. INEC (2008)