Action Congress & Anor V. Independent National Electoral Commission (2007)

LAWGLOBAL HUB Lead Judgment Report

I. KATSINA-ALU, J.S.C

My Lords, this appeal concerns the disqualification of Alhaji Atiku Abubakar, Vice-President of the Federal Republic of Nigeria as a candidate or any other candidate for the 2007 general elections. By an originating summons issued in the Federal High Court Abuja on 10 January, 2007, in which the Action Congress and Alhaji Atiku Abubakar were named as plaintiffs and Independent National Electoral Commission (INEC) as defendant, the plaintiffs applied for the determination of the following questions:

1. Whether the defendant has powers under the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006 to conduct any verification of the credentials/papers and/or screening out and/or disqualifying candidates including the 2nd plaintiff for the 2007 general elections.
2. Whether by the provisions of the Third Schedule to the Constitution of the Federal Republic of Nigeria, Item 15 paragraph (a) to (i) and section 32 of the Electoral Act, 2006 or any other provisions of the Electoral Act, 2006 or any other law, any other person other than the plaintiff has the exclusive right to verify and or screen its candidates before sponsoring them by forwarding their names to the defendant.
3. Whether the defendant has powers under any law or enactment to disqualify or screen out the 2nd plaintiff as a candidate or any other candidate for the 2007 general elections.
4. Whether by the provisions of section 32(5) of the Electoral Act, 2006, any other person or bodies other than a court of law can disqualify any candidate from contesting election:

WHEREOF THE PLAINTIFFS SEEK THE FOLLOWING RELIEFS:

(i) A Declaration that the defendant has no power under the provisions of the Constitution of the Federal Republic of Nigeria, 1999, the Electoral Act, 2006, and the Independent National Electoral Commission (Establishment, etc.) Act, Cap. 15, Laws of the Federation, 2004 to conduct any verification of the credentials/ papers and/or screening out and/or disqualifying candidates including the 2nd plaintiff for the 2007 general elections.

(ii) A Declaration that by the provisions of section 32 of the Electoral Act, 2006, only the 1st plaintiff a political party has the power to verify and or screen out its candidates before sponsoring them for election by forwarding their names to the defendant.

(iii) A Declaration that the defendant has no power under the Constitution of the Federal Republic of Nigeria, 1999, Electoral Act, 2006 and the Independent National Electoral Commission (Establishment, etc) Cap. 15, Laws of the Federation, 2004 to disqualify or screen out the 2nd plaintiff as a candidate or any other candidate for the 2007 general elections.

(iv) A Declaration that the power to disqualify any candidate sponsored by any political party including the 1st plaintiff from contesting any election is exclusively vested in the court as provided for in section 32(5) of the Electoral Act, 2006.

(v) An Order setting aside the directive of the defendant to all the political parties including the 1st plaintiff to present their candidates for physical verification and or screening.

(vi) An Order of perpetual injunction restraining the defendant whether by themselves, their agents, privies, officers, or by whosoever from conducting physical verification and or screening of candidates put forward by political parties to contest in the 2007 general elections including the 2nd plaintiff.The matter was heard by B. O. Kuewumi, J., on 7 March, 2007 the Judge gave judgment whereby he held that the defendant has no power to disqualify candidates under the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2006. The Judge also held that the power to disqualify any candidate sponsored by any political party including the 1st plaintiff from contesting an election is vested in the courts as provided for in section 32(5) of the Electoral Act, 2006.

The defendant, Independent National Electoral Commission (INEC) appealed to the Court of Appeal. The plaintiffs also cross-appealed. On 3 April, 2007 the Court of Appeal allowed the defendant’s appeal and dismissed the plaintiffs’ cross-appeal. The present appeal by the plaintiffs is from the said decision of the Court of Appeal.

At the hearing of this appeal the plaintiffs as appellants raised three issues for determination. These are:

1. Whether the defendant/respondent, as an executive, non-judicial agency of government, has the power, under the provisions of the Constitution 1999, to apply, invoke or enforce against the 2nd plaintiff/appellant, a presidential candidate nominated/sponsored by the 1st plaintiff/appellant for the 2007 general elections, the disqualification provided in section 137(1)(i) of the Constitution read in the con of other relevant provisions of the Constitution in particular section 6(i) and (6), 36(i)(4),(5) and (6) – (12) as well as in the con of the system of constitutional democracy established for the country by the Constitution.
2. Whether the defendant/respondent, as an executive non-judicial agency of government, has the power, under the provisions of the Electoral Act, 2006, to disqualify or screen out candidates for election including the 2nd plaintiff as a presidential candidate for the 2007 general election.
3. Whether the Court below was right in failing to take into account the manifest differences between the provisions of section 21 of the Electoral Act, 2002 and section 32 of the Electoral Act, 2006 as regards the vesting of power of disqualification of candidates in the courts.

For its part, the defendant submitted two issues which read as follows-;

1) Whether the respondent (INEC) has powers under the relevant laws to screen and verify particulars of candidates.

2) Whether the learned Justices of the Court of Appeal rightly held that the respondent (INEC) has powers to disallow/exclude or disqualify a candidate that is not qualified by virtue of sections 182 and 137(1)(i) of the 1999 Constitution.