Barrister Jezie Ekejiuba V. Independent National Electoral Commission & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The appellant had approached the Federal High Court of Nigeria, holden at Awka, vide an originating summons, filed on 28th September, 2011, wherein he prayed for the following:-

QUESTIONS FOR DETERMINATION

1. Whether or not the provisions of Section 78(7) of the Electoral Act, 2010 (As Amended) are from the date of the commencement of the said Act inconsistent with and violate the provisions of Section 40 of the 1999 Constitution of Nigeria (As amended)?
2. Whether or not the provisions of Section 78(7) of the Electoral Act 2010 (As Amended) enlarged, amended or altered the provisions of Sections 153 and 222 of the 1999 Constitution of Nigeria (As Amended) and curtailed the provisions of Section 40 of the said Constitution?

RELIEFS SOUGHT

1. A DECLARATION that the provisions of Section 78(7) of the Electoral Act, 2010 (As Amended) are from the date of the commencement of the said Act inconsistent with and violate the provisions of Section 40 of the 1999 Constitution of Nigeria (As Amended) and are accordingly unconstitutional, null and void and

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inoperative.

2. A DECLARATION that the provisions of Section 78(7) of the Electoral Act, 2010 (As Amended) enlarged, amended or altered the provisions of Sections 153 and 222 of the 1999 Constitution of Nigeria (As Amended) and curtailed the provisions of Section 40 of the said Constitution and are accordingly unconstitutional, null and void and of no effect whatsoever.
3. AN ORDER setting aside, nullifying and or voiding Section 78(7) of the Electoral Act, 2010 (As Amended) pursuant to Section 1(3) of the 1999 Constitution of Nigeria (As Amended).
4. AN ORDER setting aside, nullifying all the steps or actions taken or being taken by the 1st Defendant based or connected with or relating to the exercise of powers under Section 78(7) of Electoral Act, 2010 (As Amended) including the de-registration and withdrawal of Certificate of Registration of Seven (7) recognized political parties in Nigeria namely Democratic Alternative (DA), National Action Council (NAC), National Democratic Liberty Party (NDLP), Masses Movement of Nigeria (MMN), Nigeria Peoples Congress (NPC), Nigeria Elements Progressive Party (NEPP) and National Unity Party (NUP) made on

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18th day of August, 2011 by the 1st Defendant.

5. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant, Independent National Electoral Commission (INEC) its agents, officers, privies or by any means howsoever from acting or continuing to act on and or putting or continuing to put into effect of the aforesaid provisions of Section 78(7) of Electoral Act, 2010 (As Amended) and or de-register or continue to de-register any of the recognized political parties in Nigeria that have the effect of infringing the Fundamental Human Rights of the Plaintiff and other law abiding members of the recognized political parties in Nigeria. (See pages 1 to 6 of Record).

STATEMENT OF RELEVANT FACTS

1. The undisputed facts are that on 18th August, 2011, the 1st Respondent, Independent National Electoral Commission, INEC, de-registered seven (7) recognized political parties in Nigeria. This gave cause for this suit. While this suit was still pending in court to the knowledge of the 1st Respondent, INEC, again on 6th December, 2012, it de-registered another set of Twenty-Eight (28) more recognized political parties in Nigeria bringing the total number of

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political parties de-registered by 1st Respondent’s fiat to 35, and continuing unabated in complete contempt of the inherent sanctions and powers of the Court of law.

2. The Plaintiff/Appellant on record filed an originating summons dated 28th September, 2011 with an Affidavit of 26 paragraphs in support deposed to by the Plaintiff/Appellant with 3 Exhibits marked A, B and C and Written Address. (See pages 7 to 30 of Record). A 10 – point Further Affidavit was also filed by the Plaintiff/Appellant on 20/12/12 with 3 Exhibits marked D, E and F. (See pages 31 to 37 of Record).
3. The 1st and 2nd Defendants/Respondents were duly served with all the originating processes but did not file any process in defence. It is on record that on 31st January, 2013, the 2nd Defendant/Respondent was represented in Court as before by N. R. Chude Esq. (Mrs), State Counsel, who confirmed that the 1st Defendant/Respondent was duly served and aware of the pendency of the suit. (See page 72 of Record).
4. The Plaintiff/Appellant on this same day, 31st January, 2013 adopted his written Address as his own argument in the matter and the matter was adjourned to 27th

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February, 2013 for judgment. (See page 73 of Record).

5. However, in the morning of the above date fixed for judgment, the 1st Defendant/Respondent represented by Alhaji S. O. Ibrahim, Chief Legal Officer, filed a Motion for Extension of time to file process in defence. (See pages 38 to 68 of Record).
6. The competence of the said Motion dated 27th February, 2013, which was filed in the morning of the date for judgment at 9.12am and served to the Plaintiff/Appellant in the court-room when parties were awaiting the delivery of the judgment was orally opposed by the Plaintiff/Appellant on record). The Honourable Court after hearing both parties on record held that the 1st Defendant/Respondent cannot be heard to complain about fair hearing and that the Plaintiff/Appellant on the strength of his Affidavit in support of the Originating summons has the locus to institute this action. (See pages 74 to 76 and 85 of Record).
7. The 26-paragraph Affidavit and 10-paragraph Further Affidavit in support of the Originating summons has remained unchallenged and uncontroverted throughout the proceedings at the lower Court.
8. The learned trial judge in

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