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P.D.P. v. I.N.E.C.

PEOPLES DEMOCRATIC PARTY

MR. BONNIE HARUNA

V

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE RESIDENT ELECTORAL

COMMISSIONER, ADAMAWA STATE

ALL PEOPLES PARTY

DR. BALA TAKAYA

ABDUL RAHMAN ADAMU

SUPREME COURT OF NIGERIA

M. LAWAL UWAIS, CJN( Presided and Read the Lead Judgment )

ABUBAKAR BASHIR WALI, JSC

IDRIS LEGBO KUTIGI, JSC

MICHAEL EKUNDAYO OGUNDARE, JSC (Dissented)

UTHMAN MOHAMMED, JSC ( Dissented )

SAMSON ODEMWINGIE UWAIFO, JSC ( Dissented )

EMMANUEL OLAYINKA AYOOLA, JSC

SC. 66/1999

FRIDAY, 16TH JULY, 1999.

CONSTITUTIONAL  LAW - Constitution - What is

CONSTITUTIONAL LAW -  Statutory interpretation - Constitution  - How construed - Attitude of Supreme Court thereto

CONSTITUTIONAL LAW - Constitutional right - When threatened or violated - Duty of Supreme Court when construing the Constitution

ELECTION - Deputy Governor elect - When can be sworn in as Governor - Section 37(1), State Government (Basic Constitutional and

Transitional Provisions) Decree No. 3 of 1999

ELECTION - Deputy Governor-elect - Whether can be sworn in as Governor

ELECTION - Elected candidate  - Nature of right acquired  - How can be withdrawn

ELECTION - Governor -elect - Where unable to be sworn in as Governor -  Right of Deputy Governor-elect to be sworn in - Section 181(1), 1999  Constitution

ELECTION - Gubernatorial candidate and running mate - Interest acquired

-  Nature of at pre-election and  post-election stages

ELECTION - Gubernatorial election - Stages of

ELECTION - Independent National Electoral Commission - Power of to conduct election - When arises  - Where derived

ELECTION - Independent National Electoral Commission - Powers of -  Whether includes determining when occasion for election arises and rendering an election void

ELECTION - State Government (Basic Constitutional and Transitional Provisions ) Decree No. 3 of 1999, section 37(1) - “Die” therein -  Meaning of

ELECTION- Gubernatorial  election - Pre-election and election stage -  Death or permanent incapacity of gubernatorial candidate during same - Effect on running mate  - Effect on gubernatorial candidate when running mate suffers same disabilities

ELECTION- Gubernatorial election - Governor elect dying before taking oath of office  - Effect - Section 37(1), State Government  (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999

INTEPRETATION - Golden rule - Purport of  - When applied

INTEPRETATION - Mischief rule - Purport of  - When applied

INTEPRETATION - Statutory interpretation  - Plain words of  statute -  Duty of court when construing

INTEPRETATION - Statutory interpretation - Liberal approach - Basis of -  What it involves - Limit thereto

INTERPRETATION -  Statutory interpretation - Absence of express provision  in enactment  - Duty of court when construing same

INTERPRETATION -  Statutory interpretation - Gaps in a statute - Whether court empowered to fill

INTERPRETATION -  Statutory interpretation - Duty of Judges

INTERPRETATION -  Statutory interpretation - Words of  statute  - Need to be given their ordinary meaning

INTERPRETATION - Expressio unius est exclusio alterus - When applied

INTERPRETATION - Rules of interpretation  - Status of - Whether rigid rules or mere guides

INTERPRETATION - Statutory interpretation - Clear and unambiguous words of a statute - How construed - Whether need to resort to principles of interpretation

INTERPRETATION - Statutory interpretation - Constitution - How construed - Attitude of Supreme Court thereto

INTERPRETATION - Statutory interpretation - Dictionary - Role of in interpreting statute

INTERPRETATION - Statutory interpretation - Literal approach - Where results in absurdity  - Duty of court

INTERPRETATION - Statutory interpretation - Provisions of a statute -  Need not to read in isolation

INTERPRETATION - Statutory interpretation - Purposive and liberal approach  - What it connotes

JURISPRUDENCE  - Right  - When exists

JURISPRUDENCE - Rights  - Various classes of

JURISPRUDENCE  - Rights - Fundamental importance of

JURISPRUDENCE  - Vested rights - Meaning of

MAXIM - ExpressIo unius est exclusio alterus - When applied

NOTABLE PRONOUNCEMENT - Importance of separation of powers

PUBLIC OFFICER - Deputy Governor  - Tenure of  - Whether dependent on that of the Governor - Sections  36 and 41, State Government ( Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999

PUBLIC OFFICER - Governor and Deputy Governor - Offices of  - Whether vaccum can be created therein

PUBLIC OFFICER - Public officer - Right to - Nature of right that can be claimed

STATUTE  - Statutory interpretation - Duty of Judges

STATUTE - State Government (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999 - Purport of

STATUTE - State Government (Basic Constitutional and Transitional Provisions ) Decree No. 3 of 1999 - Statutory nature of  - How construed

STATUTE - State Government (Basic Constitutional and Transitional Provisions ) Decree No. 3 of 1999, section 37(1) - “Die” therein Meaning of

STATUTE - Statutory interpretation - Absence of express  provision  in enactment  - Duty of court when construing same

STATUTE - Statutory interpretation  - Plain words of statute - Duty of court when construing

STATUTE - Statutory interpretation - Gaps in a statute - Whether court empowered to fill

STATUTE - Statutory interpretation - Clear and unambiguous words of statute - How construed - Whether need to resort to principles of interpretation

STATUTE - Statutory interpretation - Dictionary - Role of in interpreting statute

STATUTE - Statutory interpretation - Liberal approach - Basis of  - What it involves - Limit thereto

STATUTE - Statutory interpretation - Literal approach - Where results in absurdity  - Duty of court

STATUTE - Statutory interpretation - Provisions of a statute - Need not to read in isolation

STATUTE - Statutory interpretation - Words of a statute  - Need to be given their ordinary meaning

STATUTE - Statutory right - Where withdrawn - Need for express provisions

WORDS AND PHRASES - “Die” in section 37(1), State Government (Basic Constitutional and Transitional Provisions) Decree No. 3 of 1999 -  Meaning of

WORDS AND PHRASES - “Intent” of the legislature  - Meaning of

WORDS AND PHRASES - “Constitution” - What is WORDS AND PHRASES - “Vested rights” - Meaning of

Issues:

  1. Whether a Deputy Governor-elect can be sworn in as Governor when the Governor elect abandoned his mandate.
  2. Whether the Independent National Electoral Commission is empowered to conduct another election to fill in a vaccum created by the abandonment of the mandate won by a Governor elect.

Facts:

The second appellant was the running mate of Alhaji Atiku Abubakar who  was elected into the office of the Governor of Adamawa State. Thus, the second appellant became the Deputy Governor elect of Adamawa State.

However, when General Olusegun Obasanjo was nominated as a presidential candidate for the first appellant, he chose Alhaji Abubakar as his running mate, who was then the Governor elect of Adamawa State. Abubakar accepted to be Obasanjo’s running mate and thus abandoned his status as a Governor elect.

The 1st respondent then wrote a letter to Abubakar, stating inter alia, that the office of the Governor-elect had became vacant by virtue of his acceptance to become Obasanjo’s running mate in the forthcoming presidential election, and that it would conduct a bye election in due course to the office of the Governor of Adamawa State.

Following the receipt of the 1st respondent’s letter by Abubakar, the appellants took out an originating summons in the Federal High Court questioning inter alia, the power of the 1st respondent to conduct a bye election.

The court in its ruling, prevented INEC from conducting another election in Adamawa State and held that the 2nd appellant could be sworn in as the Governor of Adamawa State.

The respondents, including 4th and 5th respondents who were candidates in the election, appealed successfully to the Court of Appeal which held inter alia that the 1st and 2nd respondents had power to conduct a bye election to the office of the Governor of Adamawa State; that the 2nd appellant was not entitled to be sworn in as Governor of Adamawa State and that a person becomes Governor only after subscribing to the Oaths of Allegiance and Office, notwithstanding his election to the office. The orders made by the Federal High Court were then set aside.

The appellants appealed to the Supreme Court which construed the following provisions of the State Government (Basic Constitutional and Transitional Provisions ) Decree No. 3 of 1999.

Section 37

“(1) If a person duly elected as Governor dies before taking and subscribing to the oath of allegiance and oath of office, the person elected with him as Deputy shall be sworn in as Governor and he shall nominate a new Deputy-Governor from the same senatorial district  as that of the deceased Governor who shall with  approval of the House of Assembly of the State be appointed Deputy Governor.”

(2) “Where the persons duly elected as Governor and Deputy-Governor of a State die before the inauguration of the House of Assembly, the Commission shall immediately conduct an election for a Governor of the State in which the candidates shall be nominated from the same senatorial districts as  those that produced the

Governor and Deputy-Governor who have died.”

Section 45

“(1) The Deputy Governor shall hold office of Governor if the office of Governor becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal for any other reason.”

It also interpreted the following provisions: section 4(1)(a) , Independent National Electoral Commission (Establishment ,etc.) Decree No. 17 of 1998 as amended by section 2 of Independent National Electoral Commission (Establishment etc.) (Amendment) Decree No. 33 of 1998.

The functions of the Commission shall be to-

(a)        “organise, conduct and supervise -

  1. the elections into the office of Chairmen and ViceChairmen of Local Government Councils and Area Councils, membership of the Local Government

Councils and Area Councils, office of Governor and Deputy Governor, membership of the Houses of Assembly of the States, the office of President and Vice-President and membership of the Senate and House of Representatives as may be specified in any enactment or law;

  1. the elections into such other offices as may be specified in any enactment or law; and
  2. all matters pertaining to those elections as may be provided in any other enactment or law.”

Section 10(1) and (2), Interpretation Act, Cap. 129, Laws of the Federation, 1990  provides :

“(1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.

(2) An enactment which confers powers to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.”

Section 181(1) of the Constitution of the Federal Republic of Nigeria, 1990 also provides:

 (1) If a person duly elected as Governor dies before taking and subscribing to the Oath of Allegiance and Oath of Office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy Governor shall be sworn in as Governor and he shall nominate a new Deputy Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.”