The Spirit of “Amaechi V. INEC.” is Not Dead! By Ejide Godstime Chukwuemeka
The case of Amaechi v. INEC (2008) 5 NWLR (Pt 1080) is celebrated for its radical approach to pre-election/election matters in that it is a political party that wins an election. Consequently, whoever that is found to be the valid candidate of a political party, whether before or after the election, is entitled to the office contested provided his/her political party won the election.
The facts that gave rise to the decision in Amaechi v. INEC are briefly as follows: Amaechi emerged as the winner of the PDP Primaries for the gubernatorial election in 2007 in Rivers State after contesting with seven other persons. His name was submitted to INEC but after some time, there were indications that PDP wanted to substitute his name. Amaechi approached the Federal High Court seekinginter alia, a declaration that he remained the lawful candidate of PDP for the election and also an injunction restraining the defendants from substituting his name.His name was eventually substituted with that of Omehia who did not participate in the Primaries at all. No cogent and verifiable reason was given by PDP for this substitution as required under section 34(2) of the Electoral Act 2006. The Federal High Court upheld the substitution. Amaechi went on appeal. At that time, the Court of Appeal had ruled on a similar event which happened in Imo state but had gone on appeal to the Supreme Court. The Court of Appeal thereafter stayed its proceeding to await the Supreme Court’s decision which the parties to the Amaechi’s case agreed to be bound by. PDP however resiled on the agreement after the decision turned against them. They employed several delay tactics so that the case would be overtaken by the election thereby divesting the court of jurisdiction or rendering whatever would be the decision of the Court, in the event it assumed jurisdiction, impracticable to be enforced. However, the Supreme Court, in the final appeal, held in favour of Amaechi. In the course of its judgment, the Supreme Court considered section 229 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) before stating as follows:
CONTINUE READING THIS ARTICLE BELOW AFTER THESE IMPORTANT NOTICES
Log in to primsol.lawpavilion.com and store.lawpavilion.com to enjoy the best E-journals, textbooks, and many more. For further enquiries/assistance, send an email to customercare@lawpavilion.com or call 08050298729
Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. 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.
The Court thereafter declared Amaechi the valid candidate of PDP for the election which at that time had been conducted, with PDP emerging the winner. The court considered the appropriate order to make in the circumstance and arrived thus:
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 P.D.P. In the eyes of the law, Omehia was never a candidate in the election much less the winner.
While some persons were happy with this pronouncement of the Supreme Court, it appeared that the federal legislators were not happy. They therefore caused an amendment to be effected in 2010 to the Electoral Act 2006 by providing in section 141of the Electoral Act 2010 that “an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election”. The effect of this provision on the surface seems to be that if Amaechi’s case was to be decided under this law, Amaechi could not be declared the winner of the election.
It is the duty of the legislature, of course, to write laws for the country. However, it remains the duty of the courts to interpret those laws made by the legislature and a law, at least to a realist, can never be anything other than the prophecies of what the courts will do in fact and nothing more pretentious.
It was not long before the Supreme Court was confronted with a case having related facts with that of Amaechi. Thus, in the case of Jev v. Iyortom (2014) 14 NWLR (Pt 1428), the 1st respondent, Iyortom won the primary election of APC for the Buruku Federal Constituency of Benue State against the appellant and one other. In spite of the result, APC submitted the name of the appellant as its candidate.The 1st respondent filed an action at the Federal High Court challenging the nomination of the appellant. The action was upheld. The appellant challenged the decision up to the Supreme Court where his appeal was dismissed. The Supreme Court was again faced with the nature of the order to make as the justice of the case demanded bearing in mind that the election had been conducted with the appellant emerging the winner. The court however took cognizance of section 141 of the Electoral Act 2010 as amended and came to the conclusion that the consequential relief granted in the Amaechi’s case could not be granted in the instant case since the 1st respondent did not participate in the final/general election. The court therefore ordered that the appellant should vacate the seat and that a fresh election be conducted within three months into the vacant seat with the 1st respondent as the candidate of APC.
At the time the Supreme Court delivered its judgment in the case of Jev v. Iyortom, the case of Gwede v. INEC (2014) 18 NWLR (Pt 1438) 56 which was also on unlawful substitution was before it. In this case, the 2nd respondent, Akpodiete won the primary election of DPP for Ughelli North Constituency II, Delta State. He later withdrew from the election in writing consequent upon which his Two Million naira deposit was refunded to him. DPP substituted him with the appellant and it was published by INEC. Subsequently, INEC substituted the appellant with the 2nd respondent who ran and won the election. The appellant brought an action at the Federal High Court challenging the substitution. The Court declined jurisdiction. On appeal to the Court of Appeal, the court held that the substitution of the appellant was unlawful but dismissed all the reliefs sought by the appellant. On further appeal to the Supreme Court, the court in its judgment of 24 October 2014 affirmed the candidacy of the appellant but was again faced with the appropriate relief to grant. The Court escaped the shackles of section 141 which it had already given effect to in Jev v. Iyortom on the ground that the issue was raised for the first at the Supreme Court but without leave and even if leave was obtained, the issue did not flow from the judgment of the lower court. The court went ahead to strike out the issue and ordered that certificate of return be issued to the appellant.
Later on, the Supreme Court had a cause to revisit its decision in the case of Jev v. Iyortom (new decision now reported as Jev v. Iyortom (2015) 15 NWLR (Pt 1483) ) as the 1st respondent filed a motion praying the court to substitute the order of a fresh election earlier made with an order directing INEC to issue him with a certificate of return. His argument was premised on a purported discovery of the Federal High Court decision in Labour Party v. Attorney General of the Federation, suit No FHC/ABJ/CS/399/2011 judgment delivered on 21 July 2011 in which the court struck down and nullified the provision of section 141 of the Electoral Act 2010 as amended. The court ignored the case but however relied on section 6(6)(a) of the 1999 Constitution, section 22 of the Supreme Court Act, Order 8 Rule 16 of the Supreme Court Rules 1999 as well as the case of Chief Kalu Igwe & 2ors v. Chief Okuwa Kalu & 2 ors (2002) 14 NWLR (Pt 787) 435 at 453to review the judgment so as to do substantial justice. It was then that the eyes of the Court were opened to the meaning and application of section 141. In the wake of this discovery, the court stated thus;
It is quite clear that the said section refers to some courts for which the Supreme Court is not part of.
The court went ahead to combine section 141 with section 133(2). Section 133(2) provides that;
(2) in this part, “tribunal or court” means:
(a) in the case of Presidential or Governorship election, the Court of Appeal; and
(b) in the case of any other elections under this Act, the election tribunal established under the Constitution or by this Act.
The Court thereafter concluded as follows;
Thus, this court not being one of the courts mentioned in section 133(2) of the Electoral Act is not one of the courts to which section 141 regulates. This is much more so since the issue for consideration was not an election petition appeal but a pre-election matter. In appropriate cases, this court has exercised its power to order successful litigants to be sworn in immediately without the rigour of having to go through another election. The applicant herein should not be an exception… Clearly the definition of “tribunal or court” does not include the Supreme Court or the Federal High Court hearing and determining pre-election matters. It is trite law and an unassailable legal principle that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication, with regard to the same subject matter.
The court therefore granted the prayers of the applicant by ordering that the applicant be issued with a certificate of return and that he be sworn in immediately.
With this decision, the Supreme Court has finally resurrected the spirit of Amaechi v. INEC from the dead. It therefore follows that any pre-election matter having similar/related facts with that of Amaechi v. INEC would not be caught up by the provision of section 141 of the Electoral Act 2010 as amended. I do not know of any judicial authority that has overruled this decision in Jev v. Iyortom (2015) 15 NWLR (Pt 1483) as at the time of writing this article. Neither was the decision overtaken by the amended Electoral Act 2015. In any case, it is still the duty of the National Assembly to amend the Electoral Act after which the Supreme Court would interpret it again!
FOR SUPPORT TO BARRISTERNG BLOG, DONATE TO: 1. NAIRA ACCOUNT: 1023046978 - UBA 2. USD ACCOUNT: 5090743566 - FIDELITY BANK PLC
Call Bridget Edokwe Esq on 08060798767 or send your articles to barristerngblog@gmail.com
A Must-Have for Every Lawyer: Order Justice Alaba Omolaye-Ajileye’s Latest Books on Electronic Evidence Today: To order your copies, click the link below and order directly from the author:
https://velvety-cendol-7387ed.netlify.app/
SHOP NOW
The Price is 10k for Hard Copy less freight and 5k for E- Book copy in the Store of the Website. https://buokorie.com/store/ To access the hard copy, Call - 07087622283
