WHY THE FACTS OF JOE AGI ODEY (SAN) VERSUS PDP & SENATOR BEN AYADE ARE DISTINGUISHABLE FROM ROTIMI AMAECHI VERSUS INEC & OTHERS (2007) 7-10 S.C 172

The Right Honourable Rotimi Amaechi was a staunch 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 members of the PDP. They competed for a total of 6,575 votes. Amaechi had 6,527 votes to emerge the winner. Celestine 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. 
 
However, PDP substituted Omehia's name for Amaechi's without giving cogent and verifiable reason for the substitution as required by the Electoral Act, 2006. Amaechi therefore brought before the Federal High Court a suit claiming thus:

i. A declaration that the option of changing or substituting a candidate whose name is already submitted to INEC by a political party is only available to a political party and/or the Independent national Electoral Commission (INEC) under the Electoral Act, 2006 only if the candidate is disqualified by a Court Order.

ii. A declaration that under Section 32(5) of the Electoral Act, 2006 it is only a Court of law, by an order that can disqualify a duly nominated candidate of a political party whose name and particulars have been published in accordance with Section 32(3) of the electoral Act, 2006.

iii. A declaration that under the electoral Act, 2006, Independent national Electoral Commission (INEC) has no power to screen, verify or disqualify a candidate once the candidate's political party has done its own screening and submitted the name of the Plaintiff or any candidate to the Independent National Electoral Commission (INEC).

iv. A declaration that the only way Independent National Electoral Commission (INEC) can disqualify, change or substitute a duly  candidate of a political party is by Court Order.

v. A declaration that under section 32(5) of the Electoral Act, 2006 it is only a Court of law, after a law suit, that a candidate can be disqualify (sic) and it is only after a candidate is disqualify (sic) by a Court order, that the Independent National Electoral Commission (INEC) can change or substitute a duly nominate candidate.

vi. A declaration that there are no cogent and verifiable reasons for the Defendant to change the name of the Plaintiff with that of the 2nd defendant candidate of the People's Democratic Party (PDP) for the April, 13, 2007 Governorship Election in river State.

vii. A declaration that it is unconstitutional, illegal and unlawful for the 1st and 3rd Defendants to change the name of the Plaintiff with that of the 2nd Defendant as the Governorship candidate of Peoples Democratic Party (PDP) for River State in the forthcoming Governorship Election in rivers State, after the Plaintiff has been duly nominated and sponsored by the People's Democratic Party as its candidate and after the 1st Defendant has accepted the nomination and sponsorship of the Plaintiff and published the name and particulars of the plaintiff in accordance with section 32(3) of the Electoral Act, 2006 the 3rd defendant having failed to give any cogent and verifiable reasons and there being no High Court Order disqualifying the Plaintiff

viii. An order of perpetual injunction restraining the defendants jointly and severally by themselves, their agents, privies or assigns from changing or substituting the name of the plaintiff as the River State Peoples Democratic Party governorship candidate for the April, 2007 River State Governorship election unless or until a court order is made disqualifying the Plaintiff and or until cogent and verifiable reasons are given as required under section 34(2) of the Electoral Act, 2006."

In its Judgment the Federal High Court on the 15th March, 2007 dismissed the case but made two important main conclusions thus: 

1. That the reason given by PDP for substituting Omehia for Amaechi satisfied the requirements of the Electoral Act, 2006.

2. That the letter written by PDP to INEC on 2/02/2007, at a time Amaechi's suit was subjudice was improper. The letter was set aside.

Dissatisfied, Amaechi brought an appeal against the judgment of Federal High Court, before the Court of Appeal, Abuja. Each of the PDP candidate in the primary election and Omehia filed cross-appeals on 22/3/2007 and 28/3/2007 respectively. While the appeal was pending, the PDP expelled Amaechi. 

When later, Amaechi's appeal came before the court below for hearing on 11/04/2007, P.D.P. and I.N.E.C. asked that the appeal be struck out on the ground that the court below no longer had the jurisdiction to hear the appeal, as a result of the expulsion of Amaechi from the P.D.P. 

The court below granted the prayers of I.N.E.C. and P.D.P. It struck out the appeal filed by Amaechi. Amaechi was dissatisfied with the ruling of the court below which struck out his appeal and therefore lodged an appeal to the Supreme Court of Nigeria. 

The Supreme Court held on the 25th October, 2007 that the name of Amaechi was not substituted as provided by law, the consequence was 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. The Supreme Court therefore allowed Amaechi's appeal and dismissed the cross-appeals filed by PDP and Celestine Omehia. The Supreme Court accordingly declared Amaechi the person entitled to be the Governor of Rivers State. 

Last week, the Supreme Court of Nigeria heard the appeal filed by Joe Agi Odey (SAN) concerning whether or not the Governor of Cross River State, Senator Ben Ayade was eligible to contest the 2015 governorship election under the platform of the Peoples Democratic Party. 

Joe Agi Odey (SAN) was one of the several aspirants alongside Senator Ben Ayade that contested the PDP Governorship Primary Election for the nomination of the candidate of the PDP for Cross River State in 2014 in which Senator Ben Ayade was declared the winner and subsequently contested and won the 2015 governorship in Cross River State. 

However, Joe Agi Odey (SAN) filed a pre-election matter in the Federal High Court seeking an order of disqualification of Senator Ben Ayade on the ground that Senator Ayade supplied false information concerning his age contrary to the Guidelines made by PDP for the Primary Election.
Joe Agi Odey (SAN) lost the matter in both the Federal High Court and the Court of Appeal respectively. 
But he filed a further appeal to the Supreme Court of Nigeria. Unexpectedly, the PDP in the Supreme Court conceded to the appeal filed by Joe Agi Odey (SAN) and the matter has now been adjourned to the 9th December, 2016 for judgment. 

The events that transpired in the Supreme Court have led to intense speculation as what the Supreme Court will likely do. 
Will the Supreme Court dismissed the appeal? Will the Supreme Court allow the appeal, remove Senator Ben Ayade as Governor of Cross River State and order the swearing in of Joe Agi Odey (SAN) as Governor of Cross River State? 
Those who are of the view that Joe Agi Odey (SAN) will win the appeal in the Supreme Court and ordered to be sworn into office as Governor have called in aid the celebrated case of Rotimi Amaechi Versus INEC to support their position. 
What is the current state of the Law in the country on this issue? 
I do not think that the state of the Law now is the same as the same of the Law in 2007 when Rotimi Amaechi Versus INEC was heard and determined.
This is because when Rotimi Amaechi Versus INEC was heard and determined it was the Electoral Act, 2006 that was in force. 

The relevant law now is the Electoral Act, 2010 (as amended). It is the Electoral Act, 2010 (as amended) on which the case of Joe Agi Odey (SAN) versus PDP & Senator Ben Ayade will be decided. It is the law in force when a cause of action arose that it is the relevant law.  

Section 141 of the Electoral Act, 2010 (as amended) stipulate that an election tribunal or court shall not under any circumstances declare any person a winner at an election in which such a person has not fully participated in all stages of the said election. 

In Eligwe v Okpokiri (2015) 15 NWLR (Pt.1443) 348,  the Supreme Court observes that: “What section 141 provides in plain language is simply meant to take care of the position of candidates who for whatever reason have not fully participated in all the stages of election to turn round in an election petition and claim to be returned as duly elected.” 

It is submitted that a proper analysis of the provision of Section 141 of the Electoral Act reveals that a person can only be declared a winner if and only if:
1. He participated in all the stages of an election;
2. He won at all such stages; and
3. He is available to take the oath of office

There was no similar provision such as Section 141 of the Electoral Act, 2010 (as amended) in the Electoral Act, 2006 on which the case of Rotimi Amaechi Versus INEC was decided by the Supreme Court of Nigeria. 
The pertinent question is: Did Joe Agi Odey (SAN) participate fully in all the stages of the 2015 general election? 
The answer must be in the negative. Joe Agi Odey (SAN) only fully participated in the PDP Primary Election to nominate its Governorship Candidate for Cross River State. Joe Agi Odey (SAN) did not fill INEC nomination form to participate in the 2015 governorship election in Cross River State. 

Section 87 (1) of the Electoral Act, 2010 (as amended) provides that a political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions. 
Taking part or participating in a Primary Election is not enough for an election tribunal or Court to declare somebody who did not take part in the general election winner of an election. 

The key phrase in the provision of Section 141 of the Electoral Act (supra) is: “fully participated in all the stages”. This presupposes that an election has stages. So, when is a person said to have fully participated in all the stages of an election?\

The Supreme Court in PDP v INEC (2001) 1 WRN 1, illuminated on the stages in an election as follows:
“There are three stages or phases in the process of a person contesting election to become a Governor or Deputy-Governor. The first stage is before and up to the holding of the election. The second is after having been elected but pending the assumption of office. The third stage is on assumption of office of the Governor or Deputy-Governor after declaring his asset and taking the prescribed oaths.”
Will the Supreme Court order another gubernatorial election in Cross River State? Only time will tell!

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