All Progressive Congress (APC) v. Rivers State Independent Electoral Commission & Ors (2025)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

JAMILU YAMMAMA TUKUR, JSC (Delivering the leading judgment)

The appeal is against the judgment of the Court of Appeal Abuja Division delivered on 21st November 2024, in appeal No. CA/ABJ/CV/1152/2024 wherein the lower court held that the Trial Federal High Court lacked the jurisdiction to hear and determine the suit, which suit seeks for a consideration and interpretation of the provisions of sections 9(1) (3) and 6 of the Electoral Act 2022, Items 11 and 12 on the Concurrent Legislative List and whether the 2nd respondent has the power to release the part of the Register of Voters containing the Register of Voters in Rivers State to the 1st respondent herein for the purposes of conducting Local Government Elections in Rivers State in breach of the provisions of sections 28, 29, and 103(3) of the Electoral Act.

The other question before the Trial Federal High Court relates to the contention whether the 4th and 5th respondents can participate in the conduct of the Local Government Election by providing security cover to the 1st and 3rd respondents herein during the conduct of the said Local Government Election in clear violation of the Provisions of the Constitution and Electoral Act earlier enumerated and finally whether the 2nd, 4th and 5th respondents herein who are Agencies/Agents of the Federal Government can in concert with the 1st and 3rd respondents participate in the conduct of the said election.

The appellant as plaintiff before the Federal High Court seeks the following reliefs:

“1. A declaration that the 1st defendant is duty bound to manage the updating and revising of the Register of voters in such a manner as to ensure that continuing registration and update of the Register stops not later than 90 days before the date scheduled for the conduct of Local Government Elections in Rivers State and to release that part of the Register of Voters for Rivers State to the 2nd defendant for use of the conduct of local government Elections in strict conformity and compliance with mandatory provisions of the 1999 Constitution, as amended and the Electoral Act, 2022.

2. A declaration that the 1st defendant is not entitled to release that part of the National Register of Voters containing a register of voters in Rivers State to the 2nd defendant to be used for the conduct of Local Government Election that, by virtue of section 13 and 20 of the Rivers State Independent Electoral Commission Law of No. 1 of 2018, in contravention, breach or violation of items 11 and 12 on the Concurrent Legislative List, Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended and sections 28, 29 and 103(3) of the Electoral Act, 2022.
3. A declaration that the 4th and 5th defendants are not entitled to participate in the conduct of illegal and unlawful Local Government Elections in Rivers State or to provide the 2nd and 3rd defendants with security protection to conduct the proposed Local Government Elections in Rivers State that are, by virtue of sections 13 and 20 of the Rivers State Independent Electoral Commission Law of No.2 of 2018, in contravention, breach or violation of items 11 and 12 on the Concurrent Legislative List, Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended and section 28, 29 and 103(3) of the Electoral Act 2022.
4. An order restraining the 1st defendant whether by itself, its servants, agents or privies from releasing to the 2nd and 3rd defendants that part of the National Register of Voters containing a register of voters in Rivers State, namely the official register of voters certified by the 1st defendant, for use by the 2nd and 3rd defendants for the conduct of Local Government Elections in Rivers State until the 2nd and 3rd defendants publish the requisite Notice of Election in conformity with the provisions of items 11 and 12 on the Concurrent Legislative List Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended and comply with section 28, 29 and 103 of the Electoral Act, 2022.
5. An order restraining the 2nd and 3rd defendants whether by themselves, their servants, agents or privies from receiving from the 1st defendant and or using that part of National Register of Voters containing a register of voters in Rivers State namely the official register of voters certified by the 1st defendant, to conduct Local Government Elections in Rivers State until the 2nd and 3rd defendants publish the requisite Notice of Election in conformity with the provisions of items 11 and 12 on the Concurrent Legislative List, Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended and comply with sections 28, 29 and 103(3) of the Electoral Act, 2022.
6. An order restraining the 4th and 5th defendants, their servants, agents or privies from providing the 2nd and 3rd defendants with security protection to conduct the proposed Local Government Elections in Rivers State that are, by virtues of sections 13 and 20 of the Rivers State Independent Electoral Commission Law of No. 2 of 2018 , in contravention, breach or violation of items 11 and 12 of the Concurrent Legislative List, Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended and sections 28, 29 and 103(3) of the Electoral Act, 2022.
7. An order setting aside all proceedings, acts or things done or purported to have been done by the 1st to 5th defendants in furtherance of the conduct of the purported Local Government Elections in Rivers State that are, by virtue of sections 13 and 20 of the Rivers State Independent Electoral Commission Law of No.2 of 2018, in contravention, breach or violation of items 11 and 12 of the Concurrent Legislative List, Part II of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended and sections 28, 29 and 103(3) of the Electoral Act. 2022.
8. A consequential order setting aside sections 13 and 20 of Rivers State Independent Electoral Commission Law No. 2 of 2018 as null and void to the extension of their inconsistency with the provisions of sections 28, 29 and 103(3) of the Electoral Act, 2022.”

The 1st respondent by a motion on notice filed on 16th January 2025 seeks orders of this court striking out ground 3 of the appellant’s notice of appeal filed on 6th December 2024 as well as issue 2 of the appellant’s brief of argument on 20th December 2024 for being incompetent and incurably defective.

The pivotal ground for seeking the order is that the ground is of mixed Law and facts and that leave of the court was not sought and obtained before filing same.

The appellant filed a five-paragraph counter affidavit on 7th February 2025 opposing the application.

I have read the addresses of learned counsel on both sides on the question of whether the said ground is of mixed law and facts requiring leave and I would like to say that the point made by the learned senior counsel for the appellant that the entire appeal is rooted in the pursuit of an answer to the question of the jurisdiction of the Federal High Court in entertaining the suit subject of the appeal before the lower court is not in doubt.

In countless decisions of this court some of which have been cited by learned senior counsel for the appellant such as Olayemi v. FHA (2023) 29 WRN 120, Ikpekpe v. W.R & PC Co. Ltd (2020) 41 WRN 80 issues that touch on the jurisdiction of the court are matters of law, requiring no leave.

Looking at the trajectory of the instant appeal, it is clear to all discerning minds that same is firmly rooted in issues questioning the jurisdiction of the trial Federal High Court in entertaining the suit leading to the appeal before the Court of Appeal and now before this court.

Under the circumstances, learned senior counsel for the appellant requires no leave to file the said ground. The ground is competent, so also issue 2 derived from it.

The application lacks merit and same is hereby dismissed.

The same fate must be visited on the application filed by the 1st respondent on 16th January 2025 urging the court to strike out grounds 3, 9 and 15 of the appellant’s notice of appeal and strike out issues 1 and 3 of the appellant’s brief of argument for being incompetent and without jurisdiction.