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

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.

The central issue in this appeal is whether the defendant has the power to disqualify any candidate sponsored by a political party including the 2nd plaintiff from contesting an election in the 2007 general elections having regard to the constitutional provisions and the Electoral Act, 2006.

I shall therefore consider and determine this appeal from two stand points. First, from the stand point of the 1999 Constitution. Secondly, from the stand point of the Electoral Act, 2006.

1999 Constitution of the Federal Republic of Nigeria:

The material provisions of the Constitution relied upon by the parties are sections 137(1) and paragraph 15 of the Third Schedule. I shall therefore recite them.

Section 137(1) provides as follows:

“137(1) A person shall not be qualified for election to the office of President if –

(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the

citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or

(b) he has been elected to such office at any two previous elections; or under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or

(c) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any office involving dishonesty or fraud (by whatever name called) or

(d) for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or

(e) within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or

(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or

(g) being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or

(h) he is a member of any secret society; or

(i) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunal of Inquiry Law or any other Law by the Federal or State Government which indictment has been accepted by the Federal or State Government respectively: or

(j) he has presented a forged certificate to the Independent National Electoral Commission.

Paragraph 15 of the Third Schedule

It provides thus:-

“15. The Commission shall have power to

(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;

(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly:

(c) monitor the organization and operation of the political parties, including their finances:

(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information:

(e) mange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;

(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;

(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the oath of office prescribed by law;

(h) delegate any of its powers to any Resident Electoral Commissioner; and

(h) Carry out such other functions as may be conferred upon it by an Act of the National Assembly.”

Electoral Act, 2006

With regard to the Electoral Act, 2006 the relevant section is section 32. It provides thus:

“32(1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.

(2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.

(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election.

(4) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

(5) If the court determines that any of the information contained in the affidavit is false the court shall issue an order disqualifying the candidate from contesting the election.

(6) A political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine of N500,000.00.”

It is necessary to bear in mind that the Electoral Act, 2006 is a subsidiary legislation which operates side by side with the 1999 Constitution. Both the Constitution and the Electoral Act shall be read together in order to give effect and meaning to the rights and obligation of individuals.

It is a settled principle of interpretation that a provision of the Constitution or a statute should not be interpreted in isolation but rather in the con of the Constitution or statute as a whole. Therefore, in construing the provisions of a section of a statute, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted: See Buhari & Anor. v. Obasanjo & Ors. (2005) 13 NWLR (Pt. 941) 1 (219). But where the words of a statute are plain and unambiguous, no interpretation is required, the words must be given their natural and ordinary meaning.

It has been argued for the defendant that its power to disqualify any candidate in the 2007 general elections is derived from section 137(1) of the Constitution which I have already reproduced. The plaintiffs contend otherwise. I have read that provision over and over again and I must say that there is no mention of the defendant in the provision except (j) where the candidate has presented a forged certificate to the Independent National Electoral Commission. The defendant, I hold, in the circumstances, cannot claim that the power to disqualify any candidate, the 2nd plaintiff inclusive, is conferred on it by section 137(1). I am also unable to find anything in the provision from which the power can be implied. In any event, there is no provision in the Constitution that confers the power to disqualify candidates on the defendant either expressly or by necessary implication.

It was also contended for the defendant that the ground of disqualification in section 137(1)(i) is self-executing. I am not impressed by this contention. I think a dispassionate reading of the provision, will reveal that it is not self-executing. To invoke against any candidate the disqualification therein provided would require an inquiry as to whether the tribunal or administrative panel that made the indictment is of the nature or kind contemplated by section

137(i) read together with other relevant provisions of the Constitution in particular section 36(i), which provides that:

“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”

As well as the provision in sub-section (5) of section 36 that:

“every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.

The disqualification in section 137(1)(i) clearly involves a deprivation of right and a presumption of guilt for embezzlement or fraud in derogation of the safeguards in section 36(1) and (5) of the Constitution. The trial and conviction by a court is the only constitutionally permitted way to prove guilt and therefore the only ground for the imposition of criminal punishment or penalty for the criminal offences of embezzlement or fraud. Clearly the imposition of the penalty of disqualification for embezzlement or fraud solely on the basis of an indictment for these offences by an administrative panel of inquiry implies a presumption of guilt, contrary to section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999. I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power: see Sofekun v. Akinyemi (1981) 1 NCLR 135; Garba v.University of Maiduguri (1986) 1 NWLR (Pt. 18) 550.

An indictment is no more than an accusation. In Sofekun v. Akinyeme (supra) this court per Fatayi Williams, CJN said at page 146 as follows:

“It seems to me that once a person is accused of a criminal offence, he must be tried in a ‘Court of law’ where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing …. No other Tribunal, Investigating Panel or Committee will do … If regulations such as those under attack in this appeal were valid, the judicial power could be wholly absorbed by the Commission (one of the organs of the Executive branch of the State Government) and taken out of the hands of the Magistrates and Judges … judicial power will certainly be eroded … The jurisdiction and authority of the courts of this country cannot be unsolved by either the Executive or the Legislative branch of the Federal or State Government under any guise or pre whatsoever”.

I move now to Paragraph 15 of the Third Schedule to the Constitution. I have earlier on set it out but for ease of reference I will read it again. It provides as follows:

“15. The Commission shall have power to –

(a) organise, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;

(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;

(c) monitor the organization and operation of the political parties, including their finances;

(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;

(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;

(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;

(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the oath of office prescribed by law;

(h) delegate any of its powers to any Resident Electoral Commissioner; and

(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.”

Under Paragraph 15(a) of the Third Schedule the defendant has power to organize, undertake and supervise all elections. I think this provision is plain. It should be given its ordinary meaning. I find myself, unable to read the power to disqualify in it. Indeed there is nothing in the provisions of paragraph 15 to suggest, even remotely, that the power to disqualify can be read into it. I turn now to section 32 which I have earlier on reproduced.

I would like to contrast section 32 with section 21 of the Electoral Act, 2002. Sub-sections (8) and (9) thereof provide thus:

“21(8) The decision of the Commission as to the qualification or disqualification of a candidate for an election may be challenged by a candidate.

(9) Any legal action challenging the decision of the Commission shall commence within five working days and be disposed of not later than one week before the election.”

In my considered view section 21(8) and (9) is very plain. It is clear and unambiguous. It confers on the defendant the power to disqualify candidates. This power is not in doubt. But then this provision vesting the defendant with the power to disqualify candidates was by the lawmakers in the Elcctoral Act, 2002. The legal position has since changed with the enactment of the Electoral Act, 2006. I do not want to speculate on what informed the action of the lawmakers but suffice it to say that the lawmakers in their wisdom took away this power from the defendant. And as it can be seen clearly, this power is now vested in the courts by section 32(4)(5) and (6) of the Electoral Act, 2006. For ease of reference I will read these provisions again:

“32(4) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

(5) If the court determines that any of the information contained in the affidavit is false, the court shall issue an order disqualifying the candidate from contesting the election.

(6) A political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine of N500,000.00.”

In the light of these provisions, I think it is beyond argument that the lawmakers clearly intended that the courts would have the power to deal with matters of disqualification of candidates in an election in the 2007 general elections. I think with a little imagination on the part of the defendant, it would have been so clearly obvious to it that it does not now possess the powers to disqualify any candidate including the 2nd appellant from contesting election. I am clearly of the view that this approach is consistent with the Constitution and the Electoral Act, 2006 and with common sense. It is for the above reasons that I allowed the appeal and set aside the decision of the Court of Appeal delivered on 3 April, 2007.

The reliefs sought by the appellants in the court of trial be and are hereby granted. I make no order as to costs.

SC.69/2007