ENVIRONMENTAL IMPACT OF GAS FLARING

A CRITICAL ANALYSIS OF VARIOUS LANDMARK DECISIONS OF THE SUPREME COURT THAT IMPACTED FUNDAMENTALLY ON THE CONCEPT OF THE PARTY SYSTEM IN NIGERIA.
An article presented by Olivia Chinonso Ihemeson Esq. on the 20th day 0f November, 2009
INTRODUCTION

Political parties in Nigeria are creation of the Constitution. In all the countries in the world which operate under the rule of law, politics are adapted to the laws of the land and not the laws of politics

While section 222 of the Constitution of the Federal Republic of Nigeria, gave legal recognition to the fact that political parties have their own constitutions, nothing however in such parties constitution can be superior to the Constitution of the Federal Republic of Nigeria or laws validly enacted by the authority of the Nigerian constitution
It appears to be a new era in judicial activism. The court is of the view that in the light of contemporary occurrences in the political scene evidenced by bitterness and acrimony in the country's electoral process, its decisions need to be reviewed or some what modified 2

The summary of the recent decisions of the apex court on the political scenario are as follows;

       That the Electoral Act and party constitution are not superior but must be seen as complementing the Constitution of Nigeria in formulating broader rules, regulation and operation mechanism for both the Independent National Electoral Commission and the political parties for administrative conveniences3
ii.     Where any of such enactments, rules or policies come in conflict with any section of the Constitution that enactment, rule or policy must surrender to the constitution.
iii.    If political parties in their own wisdom have written into their own constitution that candidates for election would emerge from their party primaries, the court in its ordinary duties must enforce compliance with the agreement reach by the parties in their contracts

iiii.      The constitutions of the different political parties are therefore contract between the party and members and between one member and the other.
v.      That the right of choice of a candidate to be sponsored remains the special preserve of political parties, however the right to change or substitute such candidate is made subject to the Electoral Act and is longer to be exercised capriciously or any how without recourse to the expectations of decent society 5
    vi.     Politics must be punctuated by justice fairness and orderliness6
vil.   That judges who dispense justice in court of law and equity must be ready to address new problems and have recourse to the elasticity of equitable principles and even create new doctrines where the justice of the matter so requires
This is no longer the era where the loser in a civil case take home all the laurels while the supposed winner goes home empty handed merely because elections have been conducted into the office7

This paper attempt an analysis of some of the decision of the apex courts particularly the cases of Onuoha V Okafor 8,Ugwu and anor V Ararume and anor, 9 Rt. Hon. Chibuike Amaechi V INEC and 20rs 10
Emphasis was however laid on the case of Amaechi V INEC, the decision being the latest and therefore the current law bearing in mind the doctrine of judicial precedent.
1 . Engr. Charles Ugwu
2.   Peoples Democratic Party
         V
1 .    Senator Ifeanyi Ararume
2. Independent National Electoral Commission
Citation (2007) All FWLR pt 377 page 807

BRIEF STATEMENT OF FACTS
Senator Ifeanyi Ararume emerged as the winner of his party's governorship primaries in Imo State. He scored a total of 2,061 votes as against 36 votes scored by Engr. Charles IJgwu. His name was sent to INEC as the governorship candidate for Imo state. His party was later on to submit the name of Engr. Charles Ugwu, as the party's sponsored candidate citing error as the reason for his substitution. Senator Ifeanyi Ararume instituted an action at the Federal High Court Abuja for declaratory and injunctive reliefs against his disqualification by the Independent National Electoral Commission.

4Ugwu V Ararume supra page 834 ratio 32.
5. Ugwu V Ararume page 897 paragraph G.
6 Ugwu V Ararume supra, page 922 paragraph D.
7_ Amaechi V INEC [20081 All FvVLR pan 407 ratio 28 on page 31.
8 (1983) 14NSCC494_
9(2007) All FWLR pt 377 page 807.

The Federal High court held that the reason error given by his party satisfied the requirement of section 34 of the Electoral Act, 2006 as it was done within 60 days.
On appeal to the Court of Appeal, the decision of the Court of Appeal was that the party did not fully comply with the provisions of the Act. The appellant herein appealed. The issues set down for determination by the Supreme Court are follows;
a. Whether the provisions of section 34 (1) (2) of the Electoral Act, 2006 dispensed with the Supreme Court's decision in Onuoha V Okafor Il and Dalhatu V Turaki 12 or in other words whether the issues of sponsorship and nomination by a party is justiciable?

b Whether the provisions of section 34(1) (2) of the Electoral Act 2006, to the effect that a political party seeking substitution must give cogent and verifiable reasons is justiciable at the instance of an aggrieved party?-
Amongst the submission made by counsel are the following;

        That sections 34 (1) and (2) of The Electoral Act is not mandatory in as much as there is no procedure for compliance and sanctions for non compliance13
li.       That the exercise of the right of sponsorship by a political party if done within 60days is unfettered and the court has no such right to audit the reason for the change given by the political party 14
iil .Counsel to Senator Ararume argued that the decision of the   court in Onuoha V Okafor was predicated in the repealed

11 (1983) 14 NSCC 494.
12 (2003) FWLR pt 174, 247.
Electoral Act and therefore no longer relevant in the present dispensation. He called on the apex court to overrule that decision 15

The apex court held as follows:
1 .      That the word supreme used in any political party's constitution is limited and subject to the supremacy of the Constitution of the Federal Republic of Nigeria, 1999.
2.       That nothing in a political party's constitution can derogate or subtract from a citizens constitutionally guaranteed right of access to the court
Ill.     That the issue of nomination or sponsorship of a candidate remains within the domestic affairs of a political party. The duo cases of Onuoha V. Okafor 16 Supra and Dalhatu V. Turaki 17 200 FWLR pt 174, 247 remain good law.
IV.     That the mandatory provisions of section 34 of the Electoral Act 2006 is justiciable and confers right of action on any one who is wrongly substituted to claim for a restoration of his rights
V.    That a determination of what amounts to cogent and verifiable reason does not end at the court of INEC but may be moved to the court of law at the instance of an aggrieved party.

13 Ugwu V. Ararume supra, page 846 paragraphs B — C. tJgwu V Ararume supra page 845 paragraphs G — H.
ugwu V Ararume Supra pages 850 — 851 paragraphs H — A.
- Supra
17. supra

RT. HON. ROTIMI CHIBUIKE AMAECHI
VS
1 . Independent National Electoral Commission.

Citation (2008) All FWLR. pt407 page I
BRIEF STATEMENT OF FACTS
This matter was commenced via a writ of summons on the 26th day of January, 2007 at the Federal High Court, Abuja by the plaintiff, Rt. Hon. Rotimi Chibuike Amaechi-
The summary of the reliefs sought by the plaintiff are as follows;

a declaration that by the provisions of the Electoral Act 2006 the option of changing or substituting a candidate whose names and particulars have been sent by party and published by the Independent Electoral Commission can only be exercised upon the existence of a disqualification order made by a competent Court.
A declaration that INEC has no such power to screen, verify or disqualify a candidate whose name was submitted by a party except by a court of law and such order being made pursuant to a law suit.
That in the absence of any cogent and verifiable reason nor the existence of a court order disqualifying the plaintiff it is unconstitutional, illegal and unlawful to change his name as the governorship candidate after due nomination and sponsorship by the party.
An order of perpetual injunction restraining the said defendants from substituting or changing his name except on the existence of cogent and verifiable reason or Court's order disqualifying him.

The summary of the facts in support of the plaintiff’s claims and grievances are as follows:
a. That he contested with 7 other aspirants in the party's

primaries in April, 2006 and won with over whelming majority votes.

_Barr_ Celestine Ngozichim Omehia substitutes Hon. Rotimi Amaechi whose name was sent in error did not show cogent and verifiable reasons for the said substitution in accordance with the Electoral Act 2006.
The summary of the defense proffered by the defendants are as follows:

That the name of the plaintiff was sent in error which error was subsequently correct by the letter dated 02/02/2007.

That sponsorship of one of its member by a political party is not a constitutional or statutory right and therefore not justiciable
In a judgment delivered on 15/03/2009, Nyako J. held that the said substitution met the requirements of the Electoral Act 2006 but set aside the letter dated 02/02/07 as being subjudice.
There was an appeal and cross-appeals made by the parties to the Court of Appeal.
While the appeal and cross appeals were pending, the appeal in the case of Ugwu V Ararume18 an offshoot from the Imo State gubernatorial primaries was determined by the Court of Appeal. The Court of appeal came to the conclusion in the Ugwu V. Ararume that the reason error did not satisfy the provisions of section 34 of the Electoral Act 2006. There was a further appeal to the apex court by the parties in Ugwu V. Ararume.
Consequently, the Court of Appeal before whom the present case was pending in accordance with the doctrine of stare decesis decided to await interpretation of section 34 of the Electoral Act which is the kernel of the appeal in the Ararume V Ugwu's case because as the presiding judge Adekeye JCA stated ……since that decision shall be law and applicability shall be binding on the patties particularly political parties and INEC. This court shall also base its decision on any appeal involving section 34 on the decision of the Supreme Court19
The Supreme Court on 5/4/07 affirmed the decision of the Court of Appeal to the effect that the reason "error" did not satisfy the provisions of the Electoral Act, 2006

The PDP in an attempt to pre-empt and subvert the decision of the Court of Appeal in the instant case expelled the plaintiff from the party pursuant to which the and 3rd Defendant as applicants brought an application that the court of Appeal should strike out the pending appeal on the grounds that the Court no longer has jurisdiction as a result of the expulsion.
The Court thereon declined jurisdiction and struck out the appeal.
On a further appeal to the Supreme Court, the apex court reversed the decision of the Court of Appeal declining jurisdiction and directed that the matter be expeditiously be determined by the Court of Appeal.
Following the intervention of several factors orchestrated by the defendants, the Court of Appeal heard the appeal as directed on 16/07/2006 after one of the respondent, Mr. Omehia has been sworn in as the Governor on 29/05/2007-
The Court of Appeal is its decision concluded that Amaechi's case was distinguishable from Araruma's case on the ground that unlike the later case there is inexistence, proof of his indictment by the

18 supra
19 Amaechj V INEC supra page 72 paras a-c

Economic and Financial Crimes Commission. His substitute was held as proper, valid and subsisting.

Rt. Hon. Amaechi appealed to the Supreme Court.
For purposes of this paper, the summary of the decisions of the apex court are as follows;

That nothing in a party's constitution can override or be superior to the Constitution of the Federal Republic of Nigeria or Laws enacted under the authority of the Constitution.

Election petition commonly arises after an election. It is not every election related matter that is an election petition. Pre-election issues are not election petitions and the Supreme Court has jurisdiction to hear appeals on them.

The power of disqualification of any person whose name has been forwarded to 'NEC resides with the Federal or State High Court and not INEC

That the phrase ...indicted for embezzlement or fraud by a judicial commission of inquiry or administrative tribunal or tribunal set up under the Tribunals of Inquiry Act…… as used in section 182(1) (i) of the Constitution of the Federal Republic of Nigeria, 1999 must be read in line with the provisions of section 36 (i) of the Constitution to the effect that a person has the constitutionally guaranteed right of having the determination of his civil right and obligations done by a court of law or tribunal constituted in such a manner to secure its independence, impartiality and to afford the person whose right is to be determined a fair hearing.( Amaechi V INEC supra page 14 ratio 5) .This constitutionally guaranteed right of fair hearing is not curtailed by section 182 (1) (i) of the Constitution merely because the said citizen is aspiring to a political office.
k. The Court cannot take judicial notice of an indictment by an administrative body.

Election petition and election related proceedings, are special proceedings divorced or separated from criminal or civil proceedings within the intendment and context of immunity clause under the Constitution.
m. That the immunity clause preserved by section 308 of the Constitution of the Federal Republic of Nigeria 1999, cannot be invoked in a cause of action where a deferment of the plaintiffs right of action will destroy the subject matter in dispute. Where the res will be permanently destroyed with the efflux ion of time, the immunity clause cannot be invoked to protect the holder of an office.

The duty of the Economic and Financial Crimes Commission, a statutory body, is to determine through investigation whether this is prima facie evidence that a person has committed a class of criminal office. Once there is such a prima-facie case, the EFCC should have such offender prosecuted in a court of law.

IMPACT OF THESE DECISIONS ON THE PARTY SYSTEM IN NIGERIA
These cases are of fundamental importance to the concept of the party system in Nigeria. This is because they gave lucid interpretation to several sections of the Constitution of the Federal Republic of Nigeria and the Electoral Act 2006;
The apex court therefore put an end to the era of expulsion from the party for an exercise of a constitutionally granted right. This is because while the Constitution of the Federal Republic of Nigeria recognized the existence of the constitutions of political patties, nothing in a party's constitution can override or be superior to the Constitution of Nigeria or laws enacted pursuant to it.
Obedience to the laws of the country was therefore enthroned over obedience to party ethics and rules.
The right to aspire to a political office was firmly recognized and established as flowing from the Constitution and not just from membership of a political party.
It appears that a decision of a party expelling its member can be challenged in a court of law _Even though the expulsion of the plaintiff was not contested in court, by deeming that it was Rt. Hon. Ameachi that stood for the election and also that independent candidacy is not recognized by our Constitution, it therefore implies that his expulsion was null and void and of no effect.
The apex court has further affirmed the constitutional provision that an appeal in an election matter ends at the Court of Appea121

20 The Constitution. section 122. Amaechi V. I.N.E.C. & 2 ors page 81 paras A — g.
21 The Constitution 1999 section 285 and 246, Rt. Hon. Amaechi. V INEC & 20rs supra page 110 paragraphs G — H).
The court cannot cancel an entire election conducted between several parties for the sole reason that there was crisis within the winning party22.
The decision further put an end to the era where purported indictment by quasi judicial bodies is used by politicians to hinder the emergence of their opponents or adversaries whether within or outside their parties. This is because the apex court gave judicial interpretation to the provisions of section 82(i) (i) of the 1999 Constitution to the effect that Its provisions must be read in line with section 36 (i), (2) (3) (4) and (5) of the Constitution.
An indictment capable of depriving a citizen the right of aspiring to a political position must therefore be that of a court of law. By the reasoning of the case, the power of a judicial commission of inquiry or administrative tribunal was restricted merely to the determination of the culpability of a citizen where it is alleged that such citizen has been in breach of the standards of behavior expected in public life. Where the inquiry or commission finds the citizen liable or culpable of a conduct, bordering on criminality, such as citizen should then be prosecuted in a court of law where fair hearing will be assured.( Ameachi V. INEC supra page 88-90 pars 88-91).
Political parties must abide by the provisions of its constitution on the emergence of its candidate after primary elections

A person who aspires to a political position under the auspices of a political party must manifest a desire for the office by contesting in the primary elections and emerging as the party's electoral candidate
The giving of notice to INEC by political parties informing them of the date and time of the holding of a congress is mandatory (section 85 of the Electoral Act 2006 25

The presentation or substitution of a candidate by a political party is made against the back ground that INEC officials who were notified of the said congress pursuant to section 85 of the Electoral Act 2006 and already knows the results of such party primaries. Where a political party chooses to substitute a candidate against the results of which INEC officials who witnessed the primaries already know, the party must give cogent and verifiable reasons and such reasons must exist as the face of the application for substitution.
Cogent and verifiable reason means the existence of facts, ideas which has the power to convince, compel or persuade. Such ideas facts or grounds, must also be capable of being investigated or verified. A cogent and verifiable reason is a reason that is reasonable, persuading and confirmable as to its correctness.
The obligation of giving or providing cogent and verifiable reasons lies on the political party effecting the substitution and the said reason must be stated in the application.
The cogent and verifiable reason must exist as the time of the application for substitution. It cannot be an event or facts that occurred after the application_ Where there is a problem with the first candidate, the party will accordingly opt for the 2nd , 3rd etc, candidates
26
The primary method of contest for elective offices in therefore between parties. It is a party that canvasses for votes in an election.
Where there is an invalid substitution and another candidate is improperly allowed to contest the election, the candidate who wins the case will simply occupy the position of his invalidly nominated opponent whether as loser or winner.

22. Ameachi V INEC pg. 110 paragraph F.
23 Ameachi V. INEC supra page 55.
24 Ameachi V INEC supra page 96 - 97 para. F. G O - F.
25. Ameachi V. INEC supra page 81 para B - C.
A simple dispute between two members of the same party or a determination of whether a person has been improperly substituted does not amount to an election petition

The immunity enjoyed by holders of some political officers does not extend to the matters relating to the determination of their eligibility to that particular office.

The Independent National Electoral Commission has no power under the Act to disqualify a candidate. The power to disqualify a candidate after his name has been forwarded to the commission belongs to the federal High Court or State High court
Hon. Patrick C. Onuoha
VS

Citation (1983) 14 NSCC 494.
BRIEF STATEMENT OF FACTS
This matter was instituted by the appellant herein at the High Court, Owerri via a writ of summons.
Hon. Patrick C. Onuoha and Chief Hon. Isidore Obasi belong to the Nigerian Peoples Party and are aspirants to the seat of the Owerri

senatorial district. A body set up by the party to select a candidate who will represent the party for the said position, selected the appellant herein. However upon a petition by Chief Onuoha, another panel was set up which nullified the selection of the appellant herein and in his place selected Chief Onuoha. The appellant sued in the High Court, Owerri.
The High Court presided over by Oputa C. J., held that his selection is still subsisting, valid and binding. On appeal to the Federal Court of Appeal, the court set aside the decision of the High Court and held that it is the responsibility of each political party to sponsor candidate for election and that a member of the party who is disenchanted with the patty has one honorable course open to him, i.e. to resign from the party and may decide to join another party or stay out of the politics.
On a further appeal to the Supreme Court, the apex court taking into consideration issues raised by the briefs of argument formulated a sole issue is whether the court was right to make an order directing the Nigerian Peoples Party to Sponsor the appellant as against the 3rd respondent"
The court held that the High court has no jurisdiction to entertain the matter. Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party

In arriving at this decision, the reasoning of the apex court was as follows;

That the exercise of the right of choice of candidates is a domestic affair of the party guided by its constitution and that the court has no jurisdiction in the matter.

That no justiciable dispute or controversy is presented to a court where the party merely seek adjudication of a political question.

28 Onuoha V Okafor supra page 501 para 4044
BRIEF STATEMENT OF FACTS
At the gubernatorial primaries of Jigawa state held in two different areas, both the appellant and the 1st respondent were declared winner and gubernatorial candidates by different groups. The party however recognized the nomination of the 1st respondent. When the matter reached the apex court on appeal, the Court reiterated the ratio decidendi set out in the case of Onuoha V. Okafor29 as follows;