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Alhaji Abdulkadir Balarabe Musa & Ors. V. Independent National Electoral Commission & Anor. (2002)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

The appellants herein were some of the plaintiffs in the lower court and were 1st, 5th, 7th, 9th and 27th plaintiffs. The appellants are political associations as defined in section 229 of the Constitution and they sought to be recognised or registered as political parties as defined in the said section of the Constitution. On the 17th day of May, the first respondent herein, the Independent National Electoral Commission (hereinafter simply referred to as INEC) issued guidelines for any political association wishing to be transformed into a political party, so as to enable it to sponsor candidates to vie for political offices in the country. Along with the guidelines, INEC also published time-table for the registration or the recognition of political associations as political parties aforesaid. Each of the appellants herein and others applied to INEC and collected application forms for registration as political parties. The forms were duly completed. The appellants along with the other plaintiffs by originating summons challenged the constitutionality of some of the guidelines issued by INEC and also challenged the constitutionality of some sections of the Electoral Act, 2001. The ORIGINATING SUMMONS is in these terms:-

ORIGINATING SUMMONS

“LET the 1st defendant, Independent National Electoral Commission of Plot 436, Zambezi Crescent, Maitama District AS, Garki, FCT, Abuja and the 2nd defendant, the Attorney-General of the Federation, c/o Attorney-General’s Chambers, Federal Ministry of Justice, Garki, Abuja, within eight days after service of this summons on it inclusive of the day of such service, cause an appearance to be entered for them to this summons which is issued upon the application of the plaintiffs c/o Nigerian Law Publications Ltd., Bobsar Building (1st Floor), 1035, Minchika Street, Near Assemblies of God Church, off Ahmadu Bello Way, Garki, Abuja, within the jurisdiction of this Honourable Court who claim for the determination of the following questions:

QUESTIONS

a. Whether the 1st defendant, Independent National Electoral Commission (INEC) established under section 153 of the Constitution of the Federal Republic of Nigeria, 1999, is bound to observe the conditions stipulated under sections 222 – 229 of the 1999 Constitution relating to registration of political parties?

b. Whether the 1st defendant, Independent National Electoral Commission (INEC) can by its guidelines enlarge, curtail or amend the provisions stipulated in the Constitution of the Federal Republic of Nigeria, 1999 for the registration of political parties?

c. Whether the guidelines released by the 1st defendant, Independent National Electoral Commission (INEC) on 17th May, 2002, wholly or partly conflict with or violate the provisions of the Constitution of the Federal Republic of Nigeria, 1999, relating to the registration of political parties?

d. Whether the National Assembly is competent to enact sections 74(2)(g) & (h), 74(6), 77(b), 78(2)(b) and 79(2)(c) of the Electoral Act, 2001, in relation to the registration of political parties when the Constitution of the Federal Republic of Nigeria, 1999, has made provisions covering the field in those areas?

CLAIMS

AND the plaintiffs claim the following reliefs:

A DECLARATION that the registration of political parties in Nigeria is governed by the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
A DECLARATION that the 1st defendant, Independent National Electoral Commission (INEC) cannot prescribe guidelines for the registration of political parties outside the conditions stipulated by the Constitution of the Federal Republic of Nigeria, 1999.
A DECLARATION that guideline No. 3(a) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must submit “the names, residential addresses and States of origin respectively of the members of its National and State Executive Committees and the records of proceedings of the meeting where these officers were elected” is unconstitutional, and therefore null and void, in so far as it enjoins such association to submit the names, residential addresses and States of origin respectively of the members of its State Executive committees, and the records of proceedings of the meetings where both members of its National and State Executive Committees were elected.
A DECLARATION that guideline No. 3(c) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must present “a register showing that its membership is open to every citizen of Nigeria” is unconstitutional and therefore null and void.
A DECLARATION that guideline No. 3(d)(iv) contained In the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must show “a provision that its Constitution and Manifesto conform with the provisions of the 1999 Constitution, the Electoral Act of 2001 and these guidelines” is unconstitutional and therefore, null and void in so far as the guideline relates to “the Electoral Act, 2001 and these guidelines.
A DECLARATION that guideline No. 3(e) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must have “a register showing the names, residential addresses of persons in at least 24 States of the Federation and FCT, who are members of the association” is unconstitutional and therefore, null and void.
A DECLARATION that guideline No. 3(f) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must present “an affidavit sworn to by the Chairman and Secretary of the association to the effect that no member of the National Executive of the association is a member of any other existing party or existing political association” is unconstitutional and therefore null and void.
A DECLARATION that guideline No. 3(g) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must present “a bank statement indicating the bank account into which all income of the proposed political association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid’ is unconstitutional and therefore null and void.
A DECLARATION that guideline No. 3(h) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that an association seeking registration as a political party must submit “the addresses of its offices, list of its staff, list of its operational equipment and furniture in at least 24 States of the Federation” is unconstitutional and therefore null and void.
A DECLARATION that guideline No. 3(h) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, in so far as it prescribes “that a party seeking registration must submit a list of its staff, list of its operational equipment and furniture in its headquarters office at Abuja” is unconstitutional and therefore null and void.
A DECLARATION that guideline No. 5(b) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that “a person shall not be eligible to be registered as a member of political association seeking to be registered as a political party if he/she is in the civil service of the Federation or of a State” is unconstitutional and therefore null and void.
A DECLARATION that guideline No. 2(d) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002, which prescribes that each association seeking registration as a political party “must accompany its application with twenty (20) copies of the association’s Constitution is unconstitutional and therefore null and void.”
A DECLARATION that guideline No. 2(c) contained in the 1st defendant’s “Guidelines for the registration of Political Parties, dated the 15th day of May, 2002, issued by the 1st defendant, Independent National Electoral Commission (INEC), but released to the public on the 17th day of May, 2002, which prescribes “payment of N100,000.00 (One hundred thousand Naira) by an association, that applies for registration” is unconstitutional and therefore null and void.
A DECLARATION that sections 74(2)(g) and (h), 74(6), 77(b) and 78(2)(b) of the said Electoral Act, 2001, which enlarge and 79(2)(c) of the said Act, which curtails the provisions of the 1999 Constitution on the registration of political parties are unconstitutional and therefore, null and void and of no effect whatsoever.
A PERPETUAL INJUNCTION restraining the 1st defendant, Independent National Electoral Commission (INEC), its agents, officers, privies from basing the registration of political parties either in whole or in part on guidelines nos. 3(a), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h), 5(b), 2(c) and 2(d) or from acting on the said guidelines in the consideration or process of the registration of political parties.
AN ORDER compelling the 1st defendant, Independent National Electoral Commission (INEC) to refund the sum of N100,000.00 (One hundred thousand Naira) paid by each of the associations that applied for the registration as political parties.
AN ORDER compelling the 1st defendant, Independent National Electoral Commission (INEC) to return 19 of the 20 copies of the association’s Constitution submitted to the Independent National Electoral Commission (INEC) by the political associations that have applied for the registration as political parties.

In support of the originating summons, an affidavit was filed and attached to it are (1) the guidelines issued by INEC, (2) the timetable issued by INEC for the registration of political associations as political parties.

Shortly after filing the originating summons, the plaintiffs filed a motion on notice praying for an order of interlocutory injunction to restrain INEC, “its agents, servants, officers or privies howsoever called from conducting any verification exercise on the claims contained in the forms filled and submitted by the plaintiffs/applicants which touch or relate to the guidelines being the subject matter of the claims in the originating summons pending the hearing and determination of the originating summons.” Attached to the affidavit in support of the interlocutory application for injunction are the application forms duly filled by three of the plaintiffs. On the same day, the 30th day of May, 2002, an ex-parte motion for an order of interim injunction on the same terms was also filed by the plaintiffs together with an affidavit of urgency. An order of interim injunction was made by the trial Judge on the same date that is the 30th May, 2002, pending the hearing and the determination of the motion on notice filed on the 3rd June, 2002. In the meantime and on the 31st May, 2002, the 1st respondent herein INEC filed a notice of preliminary objection to the competency of the suit. The grounds of objection are:-

“1. The plaintiffs failed to comply with the conditions precedent to the institution of this action in that they failed to comply with Order 12 rule 8 of the Federal High Court Civil Procedure Rules 2000.

The originating summons discloses no reasonable cause of action and the same is frivolous, vexatious and an abuse of the process of this Honourable Court.
The plaintiffs/respondents have no locus standi to institute this action.”

The 1st respondent INEC also caused to be filed two counter-affidavits in opposition to the application on notice for an order of interlocutory injunction.

When the matter resumed on the 4/6/2002, the learned Counsel for the plaintiffs abandoned the motion for interlocutory injunction and proceeded to argue the originating summons and the learned trial Judge permitted both the originating summons and the preliminary objection to be taken together. After the address of counsel, the matter was adjourned for judgment or ruling on both the originating summons and the preliminary objection.

In his ruling delivered on the 11/6/2002, the learned trial Judge partially allowed the objection on issue of locus standi of some of the plaintiffs who did not fill the form or submit them after filling. He however, rejected the objection on the other plaintiffs including the appellants herein. In his consideration of the originating summons, he granted reliefs 1, 2, 13; under relief 14, he granted the prayer in respect of section 74 (2)(g) of the Electoral Act 2001, the rest were not granted. Under relief No. 15 granted Nos. 2(c) and 3(g). Relief No. 16 granted. He refused to grant the other reliefs not mentioned. He also vacated the interim order of injunction he had earlier granted.

It is against the decision that both the appellants herein and the 1st respondent felt unhappy and have both now appealed to this court. For the appellants 13 grounds of appeal were filed while the 1st respondent filed 3 grounds of appeal in the notice of the cross-appeal. In view of the nature and the public importance of the matter this court with the consent of the parties agreed to make an order of departure from the rules of court in relation to the preparation of the record of proceedings and the period of filing briefs of arguments. The time within which to file briefs was abridged. And both the appellants and the 1st respondent filed documents which are deemed to be the records for the purposes of the appeal. The second respondent, the Hon., Attorney-General of the Federation did not appear nor file any brief. It is a pity, that in an important matter like this and of such high public interest, morale and order, the Attorney-General has refused to appear and assist the court in the determination of this matter. I leave this issue at this.

In his brief for the appellants, that is, 1st to 4th, Chief Gani Fawehinmi, SAN of counsel, has identified, formulated and submitted three issues for the determination of the appeal. The issues are:

“1. Whether the Independent National Electoral Commission (INEC) in the exercise of its constitutional power to register political parties is competent to prescribe or issue conditions in whatever manner on the formation or registration of political parties, which are inconsistent with the conditions stipulated by the Constitution of the Federal Republic of Nigeria, 1999.

Whether guidelines Nos. 3(g), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h), 5(b) and 2(d) of the guidelines issued by the INEC for the registration of political parties are within the provisions of the Constitution of the Federal Republic of Nigeria, 1999, with regards to the registration of political associations as political parties.
Whether the provisions of sections 74(2) (h), 74(6), 772(c) of the Electoral Act, 2001, are within the contemplation of the powers of the National Assembly under section 228(d) of the Constitution of the Federal Republic of Nigeria, 1999.”

A common brief was filed by all the appellants, including the 5th appellant, who is represented by Mr. Aliyu Umar of counsel. The 1st respondent cross-appellant filed the respondent’s brief and the cross-appellant’s brief, while the appellants filed common respondents’ brief to the cross-appeal and have also filed a reply brief. Due to time factor, since there was not enough time for the cross-appellant to file his reply brief, with the consent of the parties, the respondent/cross-appellant was allowed to make oral submission in place of a cross-appellant’s reply brief. In the brief for the cross-appellant, the learned Counsel has submitted the following issues for the determination of the cross-appeal:-

“1. Whether the appellants have locus standi in the matter before the court.

Whether the appellants’ initiation of the action by originating summons was proper.
Whether the failure of the trial Judge to make reference to a letter written by Okeaya-Inneh, Esq., referring to additional authorities on the interpretation of S.75 of the Electoral Act, 2001, has any effect on the judgment.”

Before dealing with the oral and written submissions of counsel for all the parties, it shall be convenient at this stage to put briefly, the background facts which are undisputed and they are:- INEC is a Federal Executive Body established for the Federation of Nigeria under S.153 of the Constitution. Its composition and powers are as contained in PART 1 of the Third Schedule to the Constitution.

The relevant portion of the Part 1 Third Schedule provides:-

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

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

Under sections 221 to 229 of the Constitution inclusive, provisions have been made for political parties and how an association may transform to a political party. In particular, section 228 of the Constitution confers on the National Assembly powers to make laws for the purposes of enabling INEC more effectively, to ensure that political parties observe the provisions of the Constitution. In consonance with the above, the National Assembly enacted the Electoral Act, 2001. Under Part III of the Electoral Act, 2001, provisions have been made for political parties. In particular sections 74, 75 provide the manner in which political associations wishing to be registered as political parties to follow.

In apparent compliance with the provisions of the Constitution and the Electoral Act, INEC issued the aforesaid guidelines and the time-table for the registration of political parties. The appellants herein and others objected to the constitutionality of the guidelines issued and some of the provisions of the Electoral Act and challenged them by filing the suit the subject matter of the appeal before this court.

In order to appreciate the arguments of counsel, it shall be necessary to set out the relevant constitutional provisions, the relevant portions of the Electoral Act and the guidelines issued by INEC.

The Constitutional provisions are:

“S.221. No Association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.

No association by whatever name called shall function as a political party, unless –

(a) the names and addresses of its national officers are registered with Independent National Electoral Commission;

(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstances of birth, sex, religion or ethnic grouping;

(c) a copy of its constitution is registered in the principal office of Independent National Electoral Commission in such a form as may be prescribed by the Independent National Electoral Commission.

(d) any alteration in its registered constitution is also registered in the principal office of the Independent National Electoral Commission within Thirty days after making such alteration;

(e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and

(f) the headquarters of the association is situated in the Federal Capital Territory, Abuja.”

The other provisions in the part relate only to a registered political party, though reference has been made to them in the arguments of counsel.

Now paragraphs 14 and 15 of PART I of the Third Schedule provides

“15. The Commission shall have power to-

a. xxxxxx

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

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

Now, S.74(2) of the Electoral Act, 2001, reproduced the provisions of S. 222 (a) -(f) but added –

“(g) it produces evidence of payment of registration fee of N100,000 or as may be fixed from time to time by an Act of the National Assembly;

(h) it provides the addresses of the offices of the Political Association in at least two thirds of the total number of the States of the Federation spread among the six geo-political zones.

S.74(6) Any Political Association that meets the conditions stipulated in subsections 1 and 2 of this section shall be registered by the Commission as a political party within 30 days upon payment of the sum of N100,000 administrative and processing fees and if after the 30 days the association is not registered by the Commission it shall be deemed to be so registered.

S.77(b) a copy of the party’s Constitution drawn up in compliance with Chapter 11 of the Constitution of the Federal Republic of Nigeria and with the requirements of the relevant guidelines issued by the Commission.

S.78(2)(b) at all times be in compliance with the provisions of the Constitution, the electoral laws and guidelines made by the Commission.

S.79(2)(c) is a member of the Public Service or Civil Service of the Federation, a State or Local Government or Area Council as defined by the Constitution.

The relevant paragraphs of the guidelines, the appellants objected to are: –

3(a) The names, residential addresses and States of origin respectively of the members of its National and State Executive Committees and the records of proceedings of the meeting where these officers were elected.

3(c) A register showing that its membership is open to every citizen of Nigeria.

3(d)(iv) A provision showing that its Constitution and manifesto conform with the provisions of the 1999 Constitution, the Electoral Act 2001 and these guidelines.

3(e) A register showing the names, residential addresses of persons in at least 24 States of the Federation and FCT, who are members of the Association.

3(f) An affidavit sworn to by the Chairman and Secretary of the Association to the effect that no member of the National Executive of the Association is a member of any existing Political Association.

3(g) A bank statement indicating the bank account into which all income of the proposed Political Association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid.

3(h) The address of its headquarters office at Abuja and the addresses of its officers, list of its staff, list of its operational equipment and furniture in at least 24 States of the Federation.

5(b) A person shall not be eligible to be registered as a member of Political Association seeking to be registered as a Political Party if he/she:-

(b) is in the Civil Service of the Federation or State.

2(a) Twenty copies of the Association’s Constitution and Manifesto.”

The learned Counsel also referred to S.40 of the Constitution which reads: –

“S.40 Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests:

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

These are under the provisions which in this judgment, I will consider.

I shall in this judgment, first deal with the appellant’s appeal and afterwards the cross-appeal.

THE APPEAL

I shall deal with all the three issues submitted by the appellant together. It is common ground and there is no dispute about it and all counsel agreed to it that the prayers contained in the declarations 1 and 2 sought by the appellants were granted by the learned trial Judge. The learned trial judge held in his judgment.

“The answer to the first question is therefore very simple and straight forward. INEC, a body established under S.153 of the Constitution of the Federal Republic of Nigeria, 1999, is bound to observe the conditions stipulated under Ss. 222-229 of the Constitution relating to the registration of Political Parties. I therefore, answer question (a) in the affirmative.”

With reference to the second declaration sought, the learned trial judge held:-

“Since I have earlier found that INEC has no legislative competence to legislate on any matter, the guidelines released by it, are not laws and cannot be given the status of a legislation. They are only to serve as guides to the Political Associations seeking registration on how to comply with the conditions and requirements of the law relating to their registration as political parties x x x x

The guidelines therefore cannot in my view enlarge, curtail or amend the provisions stipulated in the Constitution for the registration of political parties.”

Clearly, there is no appeal on this point by the learned Counsel for the respondent and as such I treat the view expressed by the Judge as correct. See Odiase v. Agho (1972) 3 SC 73.

It is submitted by the learned Counsel for the 1st to 4th appellants that in order to transform from a political association into a Political Party, defined under S.229 of the Constitution, certain conditions as stipulated under S. 222 of the Constitution must be complied with by any association seeking to function as a political patty. It is also submitted that the Constitution of an association seeking to be registered as a political party must take congnisance of the provisions of S. 223 of the Constitution. Thus, the only requirements are those spelt out under S.222 and S. 223 of the Constitution. It is submitted, that any other condition stipulated by INEC would appear to be contrary or in addition to the constitutional requirement.

It is submitted that the guidelines Nos. 3(a), 3(e), 3(d)(iv), 3(e), 3(f), (g), 3(h), 5(b) and 2(a) issued by INEC are inconsistent with the conditions already laid down by the Constitution on the formation of political parties. In the alternative, it is submitted that in making these conditions INEC has enlarged, curtailed or amended the constitutional provisions referred to above. It is submitted that S. 222 expressly and clearly in unequivocal terms lays down only six conditions that must be met before an association can function as a political party and once the conditions are fulfilled INEC has no option other than to recognise the association as a political party. Learned Counsel referred to the case of Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 at 191, where the Supreme Court per Onu, JSC said;

“Where a right has been conferred by the Constitution, it cannot be taken away by any other statutory provision except the Constitution itself and any law so made is void to the extent of its inconsistency.”

It is again stressed that outside the provisions of S. 222 and perhaps section 223, there are no other provisions made as regards restrictions or conditions that must be met before an association functions as a political party. It is further submitted that all guidelines referred to above are not, within the contemplation of the provisions of S. 222 and or S. 223 of the Constitution and are to that extent unconstitutional and INEC has no competence to put conditions outside the constitutional provisions. It is again stressed that the conditions stipulated in the guidelines have the effect of enlarging, curtailing or altering the provisions of the Constitution. Learned Counsel referred to the case of A.-G., Bendel State v. A.G. Federation (1982) 3 NCLR 1 at 77 – 78, where the Supreme Court laid down twelve basic principles of interpretation and construction of statutes.

It is again submitted that once the Constitution has made provisions with regard to the registration of political parties, the National Assembly lacks the legislative competence and vires to either enlarge, alter and or curtail the clear provisions of the Constitution. Learned Counsel cited and referred to the Supreme Court decision in Attorney-General of Abia State And 35 Others v. Attorney-General of The Federation (2002) 6 NWLR (Pt. 763) 264, 369, 391. It is accordingly argued, that guidelines issued by INEC on a matter properly covered by the Constitution is an exercise in breach of the Constitution.

In the case of the Electoral Act, the provisions of sections 74 (2)(h), 74(6) and 79(2)(c), it is argued, could not have been validly made by the National Assembly within the contemplation of S. 228(a) of the Constitution. It is again submitted that the National Assembly cannot rely on the provisions of paragraph 15(b) of Part 1 of Third Schedule to Constitution to make laws for the registration of political parties either by repeating what the Constitution has already covered or by altering, enlarging or curtailing the constitutional provisions vide the A. -G. of Abia State case supra. It is further submitted that, if the National Assembly relied on the provisions of S. 228(d) of the Constitution, that section only relates to political parties and not to associations applying to become political parties and further that the enactment of sections 14 (2)(h), 74(b) and 79(2)(c) are not within the powers of the National Assembly under the provisions of S. 228(d) of the Constitution. It is further submitted that sections 15, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 110 – 122, were before the Supreme Court for the determination of their constitutionality and that court declared the sections unconstitutional. See the case of A.-G., Abia State supra. The principles stated in that case are germane to the consideration of the sections now being challenged by the appellants.

It is submitted that employing the same principles this court should declare sections 74(2)(h), 74(6), 77(b) and 79(2)(c) as unconstitutional and the guidelines made by INEC under them untenable.

The learned Counsel for the 5th appellant, Mr. Aliyu Umar of counsel associated himself with the submissions of the learned Counsel for the 1st to 4th appellants.

The learned Counsel for the respondent on the other hand, argued that since by paragraph 15(b) of Part 1 of Third Schedule to the Constitution, INEC was given the responsibility to register political parties in accordance with the constitutional provisions and the provisions of an Act of the National Assembly and that by the provision of S.162 of the Electoral Act, 2001, specifically permitted INEC to issue guidelines in order to give effect to the provisions of the Act, INEC has the undoubted right to issue the guidelines. Since INEC is given the power to register political parties, by implication, INEC has the power to issue the guidelines in order to achieve the statutory responsibility placed upon it. See S.10(2) of the Interpretation Act, Cap. 112 of LFN, A.-G. of Ondo State v. A.-G. of The Federation (2002) 9 NWLR (Pt. 772) 222 at 335. It is further submitted that there is no relief claimed by the appellants that paragraph 15(b) of Part I of Third Schedule and S. 162 of the Electoral Act 2001, be set aside. It is argued that the guidelines were issued in compliance with the provisions of paragraph 15(b) aforesaid and S.162 of the Electoral Act and the action of INEC, in issuing the guidelines cannot be said to have expanded or contracted the constitutional provisions. It is further submitted that the Constitution has envisaged and made clear provisions to enable the National Assembly to enact the law to deal specifically with the transformation of political associations into political parties. The Constitution itself has provided for the National Assembly and INEC to make certain rules. It is submitted that statutes should not be construed so as to defeat the very object of the Constitution spelt out in clear provisions. See Mabury v. Madison 1 Granch 137; Rabiu v. The State (1981) 2 NCLR 293; Fawehinmi v. I.G.P. (2002) 7 NWLR (Pt. 767) 606 at 678.

It is further submitted that, the first issue as contained in the appellants’ brief cannot be a proper issue for determination because there was no decision by the trial Judge which opposes the views expressed by the appellants. It is further submitted that the issue is not covered by any of the grounds and it ought to be discountenanced. See Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 568.

It is finally submitted that if the framers of the Constitution felt the provisions of S. 222 and S. 223 are exhaustive and comprehensive and would meet all eventualities, it would not have given INEC through an act of National Assembly the power to make regulations.

Now, the learned Counsel for the respondent did not in his brief, refer or make submissions in respect of the appellants’ issue No.3. This issue as shown above is an attack on the constitutionality of some of the provisions of the Electoral Act 2001. I shall however, deal with the issue on the basis of the appellants’ brief alone.

I agree with the submissions of the learned Counsel for the respondent, that broadly speaking, issue No.1 does not arise. But there is no way issues 2 and 3 can be properly dealt with without recourse to the general principles of the law that no enactment, bye-law or guideline can exists which is directly or indirectly in conflict with the provisions of the Constitution. The learned Counsel for the appellant’s infact started his submissions by showing his agreement with the findings of the learned trial Judge on these points. It may be recalled that the learned trial Judge had held in the early part of his judgment that “INEC as a body established under S. 153 of the Constitution x x x x is bound to observe the conditions stipulated under S. 222 of the Constitution relating to the registration of political parties” and had therefore, granted the prayer in the first declaration. He also held with reference to the second declaration claimed that” x x x x x the guidelines therefore cannot in my view enlarge, curtail or amend the provisions stipulated in the Constitution for the registration of political parties.”

The respondent has not appealed against these declarations by the trial Judge and as mentioned above, this appeal will be considered on the basis that the view of the learned trial Judge is correct that INEC is bound by the provisions contained under Ss. 222-229 of the Constitution and that the guidelines issued by INEC “cannot ENLARGE, CURTAIL OR AMEND” the constitutional provisions aforesaid. Now, the appellants had argued that the effect of the guidelines issued by INEC is to place more burden on any Political Association wishing to become a political party than the constitutional provisions as contained under SS. 222 and 223. Now, the starting point is to restate the general principles of the law, governing the interpretation of the Constitution. The interpretation that would serve the interest of the Constitution and best carry out its object and purpose should be preferred. Its relevant provisions must be read together and not disjointedly and where the words of any section are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with the other provisions of the Constitution. See Ifezue v. Mbadugba (1984) 1 SCNLR 427; (1984) 5 SC 79. In the case Tinubu v. I.M.B. Securities Plc (2001) 16 NWLR (Pt.740) 670 at 708 Karibi- Whyte JSC said:-

“It has never been allowable and the sacred obligation of the courts is not to construe any of the provisions of the Constitution to defeat the obvious ends the Constitution was designed to serve. To construe the provisions of section 308 in the manner suggested and thereby, enable the persons named in section 308(3) to exercise the right to sue in addition to the absolute immunity conferred on them, whilst in office by section 308(1)(a) will defeat the immunity designed by the Constitution and lead to manifest injustice.”

In that case, the appeal of the Governor of Lagos State, was held not to be justiciable even though he was the appellant and apparently the provisions of S.308 did not prevent him from instituting an action against anybody. Thus, to allow the appeal to continue will among other things lead to manifest injustice – what is good for the goose is also good for the gander. It is absurd and ridiculous to allow the Governor to take an action in his personal capacity, while he enjoys absolute immunity in actions against him in his personal capacity.

Now, it is trite that the Constitution of Nigeria is the basic law of the land. It is the supreme law and its provisions have binding force on all authorities, institutions and persons throughout Nigeria. See Adediran v. Interland Transport Limited (1991) 9 NWLR (Pt. 214) 155, Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130. The Constitution must therefore, be interpreted liberally. Thus, it is not the duty of the court to construe any of the provisions of the Constitution so as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. See Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458; Rabiu v. State (supra) Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506. Thus, the whole provisions of the Constitution must be looked at to see that the very ends the Constitution is designed to achieve is not defeated. See Adesanya v. The President, Federal Republic of Nigeria (1981) 2 NCLR 358. The supremacy of the Constitution over any other law, regulation, manual or guideline is obvious. Any legislation or statutory instrument that negates the provisions contained in the Constitution is null and void and is of no effect. Section 1(1)(3) reads:-

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

In the case of Akintola v. Oyelade (1993) 3 NWLR (Pt. 282) 379, it was held that the jurisdiction of a High Court of a State under S.236(1) of the 1979 Constitution is unlimited and only subject to the provisions contained in the aforesaid Constitution and as such the unlimited jurisdiction of the High Court cannot be curtailed by the provisions of any statute. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, where it was held that S.41 of the Land Use Act did not oust the unlimited jurisdiction of the State High Court. ONU, JSC at page 193 of the report said:-

“The Constitution being the supreme law of the land, stands above other enactments, statutes or laws and its provisions cannot be made subject to any other Act or enactment except by direct and clear (other constitutional) provisions to that effect. It necessarily follows, therefore, that even if section 41 of the Act were to be read as ousting the jurisdiction of the High Court, (which is not conceded) and despite the Act (by virtue of section 274(5) of the 1979 Constitution) being incorporated or entrenched therein, it is not an integral part of the said Constitution, and therefore, any of its provisions which is inconsistent with the Constitution, is to that extent null and void.”

The learned Justice had earlier stated at page 191:-

“In addition, a right conferred by the Constitution cannot be taken away by any other statutory provision except the Constitution itself and any law so made will be void to the extent of its inconsistency.”

In the case of Adesanya v. The President supra Fatayi Williams CJN said at 359:-

“When interpreting the provisions of our 1979 Constitution not only should the courts look at the Constitution as a whole, they should also construe its provisions in such a way as to justify the hopes and aspirations of those who have made the strenuous effort to provide us with ‘a Constitution’ for the purpose of promoting the good government and welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the purpose of consolidating the unity of our people.”

I respectfully share the view expressed by the learned Justice of blessed memory, that the fundamental right and obligation should not be restricted in any way where none is clearly provided for in the Constitution.

Now, S.40 of the Constitution provides:-

“Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests: Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

It is significant to note that, S.39 providing for freedom to disseminate information is subject to a law to be enacted by the National Assembly giving restrictions “reasonably justifiable in the democratic society”. Similarly S.41 guaranteeing the right to freedom of movement is also limited to the provisions of a law reasonably justifiable in a democratic society. The restriction placed under S.40 in the proviso is the recognition by INEC of an association on the POWERS conferred upon INEC by the Constitution. Now, Section 222 of the Constitution provides:-

“No association by whatever name called shall function as a political party, unless –

(a) the names and addresses of its national officers are registered with the Independent National Electoral Commission;

(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstances of birth, sex, religion or ethnic grouping;

(c) a copy of its Constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission;

d) any alteration in its registered Constitution is also registered in the principal office of the Independent National Electoral Commission within thirty days of making such alteration;

(f) the headquarters of the association is situated in the Federal Capital Territory, Abuja.”

Section 223 has made provision for the Constitution and rules of political parties, which in my view should not be different from those of an association seeking to be recognised as a political party. In my view, there are no other conditions for an association seeking to be registered as a political party to comply with other than those spelt out in S.222 and S.223 with reference to the contents of the Constitution and the rules.

S. 228 of the Constitution merely provides for the powers of the National Assembly with respect to the registered Political Parties.

“(a) for the punishment of any person involved in the management or control of any political party found after due inquiry to have contravened any of the provisions of sections 221, 225(3) and 227 of this Constitution.”

(b) for disqualification of any person, etc.

(d) for the conferment on the Commission of other powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively, to ensure that political parties observe the provisions of this Part of the Chapter.”

In my view, the powers conferred by S.228 of the Constitution on INEC are to do with registered political parties. In all the subsections of this section, the words used are political parties and not political associations.

It is settled law that in the interpretation of the Constitution, the Supreme Court in the case of AG., Bendel State v. A.-G. of The Federation (1982) 3 NCLR 1, laid down some guidelines thus:

(a) effect should be given to every word;

(b) the language of the Constitution, where clear and unambiguous must be given its plain evident meaning;

It, accordingly does not appear to me, that the National Assembly has the powers under S. 228 to make any law in relation to an association wishing to be registered as a political party outside the provisions contained under S. 222 and perhaps S. 223 of the Constitution.

Now, there is no doubt that item No. 15(b) of the Part 1 of the Third Schedule to Constitution provides:-

“The Commission shall have power to-

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

In my view and in accordance with the principles cited above, the National Assembly cannot make any laws pursuant to Item 15(b) either repeating what the Constitution has already provided or by altering, enlarging or curtailing the provisions already contained in the Constitution. In the case of Abia State and 35 Others v. A.G. of The Federation (2002) 6 NWLR (Pt.763) 264 at 391. UWAIS, CJN, said:

“I agree that the doctrine of covering the field can conveniently be extended to apply to a situation, where the Constitution has covered the field vis-a-vis a Federal or State legislation, such a legislation is not void simpliciter, but will not be operative in view of the provisions of the Constitution.”

KUTIGI, JSC at 369 of the report stated:-

“Where the provision in the Act is within the legislative powers of the National Assembly, but the Constitution is found to have already made the same or similar provisions, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of the Act, which seeks to enlarge, curtail or alter any existing provisions of the Constitution. The provision will be treated as unconstitutional and therefore null and void.”

It is also settled by the Supreme Court in the case of Attorney-General of Anambra State And 13 Others v. The Attorney-General of the Federation And 16 Others (1993) 6 NWLR (Pt. 302) 692 at 720 where UWAIS, CJN, stated:

“Although section 1 subsection (2) of Decree No.1 of 1984 provides that S. 212 of the 1979 Constitution is modified, Schedule 2 to the Decree talks of substituting a new section. The question that follows is whether there is a difference between the words “modification” and “substitution”, as employed by the section and the Schedule respectively. If there is, the issue that would arise would be: what interpretation is to be given to the substitution in the schedule vis-a-vis the modification “envisaged under subsection (2) of section 1 of Decree No. 1 of 1984? The general principle is that if an enactment in a Schedule contradicts an earlier clause, the clause prevails against the Schedule. See Dean v. Green (1882) 8 P.D. 79, per Lord Penzance.”

In this connection, see also Egolum v. Obasanjo (1999) 7 NWLR (Pt.611) 423.

It is now trite law that the provisions contained in an enactment, including the Constitution are accorded more prominence than the contents of a Schedule especially, when there is conflict or contradiction between the Schedule and a section in the enactment. Thus, item No. 15 (b) does not empower the National Assembly to make legislation falling foul of the express provisions of S.222 read together with section 40 of the Constitution. I accordingly, do not accept the arguments of the learned Counsel for the respondent, that Item 15(b) and (i) and section 228 of the Constitution or S.162 of the Electoral Act, do not permit the National Assembly or INEC to legislate or make guidelines which appear to subvert the clear provisions of S.222 of the Constitution.

The learned Counsel also made reference to S.75 of the Electoral Act. In my view S.75 of the Electoral Act is not relevant to the proceedings presently before this court. The provisions of S.75 can only be invoked, when the complaints of the applicants are concerned with the refusal of the INEC to register political parties. This matter is only concerned with the constitutionality of the guidelines and the provisions of the Electoral Act, which appear to be an enlargement of the constitutional provisions contained under S. 222 and or S. 223 of the Constitution.

Applying all the principles mentioned above once an association meets the conditions spelt out under S. 222 and S. 223, such an association automatically transforms and becomes a political party capable of sponsoring candidates and canvassing for votes in any constitutionally recognised elective office throughout Nigeria.

In summary (a) guideline 3(a), 3(c), 3d(iv), 3(e), 3(f), 3(g), 3(h) 2(d) and 5(b) issued by INEC requesting associations to comply when seeking to become political parties are not within the contemplation of the Constitution and are therefore null and void. (b) The provisions of sections 74(2)(h), 74(6) and 79(2)(c) of the Electoral Act, 2001 are not within the contemplation of S. 228(d) of the Constitution. (c) Item 15(b) of Part 1 of Third Schedule does not authorize the National Assembly or INEC to enact any law or issue any guideline outside the provisions of S. 222 and S. 223 read along with S. 40 of the Constitution. All the issues having been resolved in favour of the appellants, this appeal succeeds.

The respondent filed a cross appeal. I have at the beginning of this judgment reproduced the issues for the determination of the cross-appeal. The notice of preliminary objection filed by Mr. Eghobamien, SAN for the 1st defendant, the 1st respondent had three grounds of objection:-

“1. The plaintiffs, the appellants herein, failed to comply with the conditions precedent to the institution of this action in that they failed to comply with Order 12 rule 8 of the Federal High Court (Civil Procedure) Rules, 2000.

The originating summons discloses no reasonable cause of action, and the same is frivolous, vexatious and an abuse of the process of the Honourable Court.
The plaintiffs/appellants have no locus standi to institute this action.”

In his judgment, the learned trial Judge held that the failure to obtain leave to sue in a representative capacity did not vitiate the proceedings. The learned trial Judge also rejected the second ground of objection and held that the originating summons disclosed a reasonable cause of action. With reference to ground 3 of the objection, the learned trial Judge found that some of the plaintiffs including all the appellants herein have locus standi to institute the action. The 11 plaintiffs who the learned trial Judge found had no locus standi because the identity of the plaintiffs, who applied for the forms and those who filled the forms was in question. In any event, the cross-appeal is against the finding by the trial court that the appellants herein had the locus standi to initiate these proceedings.

Issue 1 of the Cross-appeal

This is concerned with the question of the locus standi of the appellants to initiate the proceedings. It is submitted that the appellants did not disclose or establish their rights and obligations to institute the action in the affidavits filed in support of the originating summons. Learned Counsel referred to the case of Egolum v. Obasanjo supra. The appellants have not shown their interests that have been violated. See Ubulu-Uku v. Edumodu (1999) 11 NWLR (Pt. 627) 369. Locus standing has been held to be a condition precedent to the initiation of any judicial process Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 at 338. It is further submitted that the appellants have no justiciable interest to challenge the legislative or executive action of the State in a court of law. Learned Counsel referred to Adesanya v. The President (supra).

The learned Counsel for the 1st – to the 4th cross-respondents, Chief Gani Fawehinmi, SAN on the other hand, argued that the appellants are Political Associations defined under S. 229 of the Constitution. The facts are obvious that they wanted to be registered as Political Parties as defined under the same section. Their claims before the court relate to the matters affecting the processes of their becoming Political Parties. These processes include the provisions of the Electoral Act, 2001, and the guidelines issued by INEC. It is submitted that the appellants have sufficient and special interest to complain on the constitutionality of both the guidelines and the Electoral Act. Learned Counsel referred to Adesanya v. the President (supra); Odeneye v. Efunnuga (1990) 7 NWLR (Pt.164) 618; Williams v. Dawodu (1988) 4 NWLR (Pt. 87) 189; Gani Fawehinmi v. Akilu (1987) 4 NWLR (Pt.67) 797; Fawehinmi v. IGP (2002) 7 NWLR (Pt.767) 606.

It is finally submitted that from all the surrounding circumstances, the appellants have sufficient legal interest to challenge the legislation and the guidelines in a court of law.

Now, it is settled law that, if a party to a dispute has no interest in the matter, he is said to have no standing to institute the action. The term “locus standi” was exhaustively discussed in the Adesanya case supra. It cannot stand independently from the provision of S.6(6)(b) of the Constitution and the consequence of a failure to disclose a plaintiff’s locus standi has been settled by the pronouncement of the Supreme Court long since 1961, in the case of Gamioba v. Esezi II (1961) 2 SCNLR 237; (1961) All NLR 584.

In the instant case, the appellants are undoubtedly associations as defined under the provisions of S. 229 of the Constitution and were in the process of applying to be Political parties to sponsor candidates and to canvass for votes in all the elective offices mentioned in the Constitution. The cross-appellant has the constitutional power to register the cross-respondents as political parties. In the process of such registration, INEC published guidelines detailing the conditions to be met before registration. Similarly, the National Assembly under the powers conferred upon it by the Constitution enacted a law, which included conditions to be met by any association wishing to be registered as a political party. The cross-respondents did not like some of the provisions contained in the guidelines and in the enactment. They feel those conditions imposed by both INEC and the National Assembly are not within the contemplation of the Constitution. Under this scenario, I am of the view that, the cross-respondents have sufficient interest to invoke the jurisdiction of the courts to challenge those conditions. I agree, from the undisputed facts of this case, that the issue of locus standi should not have been raised at all. It is obvious that the appellants have the locus standi to institute this action. I resolve issue I against the cross-appellant.

Issue No.2

Now, under this issue, the learned senior counsel for the cross-appellants is complaining about the mode of the initiation of the process in the lower court. That is to say, the originating summons procedure is not the proper method of challenging the legislation or the guidelines. I have in this judgment, reproduced the ground of objection of the learned Counsel in the lower court. It was to do with cause of action. It was claimed that the originating summons did not disclose any reasonable cause of action. The argument of counsel in lower court was only on this basis and the learned trial judge as pointed out above, found that there was reasonable cause of action. The cross-appellant is now quarelling with the appropriateness of the originating summons procedure for this kind of action. This is a new issue which was not argued and canvassed and which the learned trial judge was not given the opportunity to decide on. It is settled law that for fresh issues to be raised on appeal, leave of either the trial court or this Court must be obtained. No leave has been obtained. The issue as argued by counsel is incompetent and I need not say anything on it. Suffice it to state that where a party in any proceedings agrees to an irregular procedure he cannot on appeal complain. I accordingly, discountenance the second issue.

Issue No.3

The complaint under this issue is that the learned trial Judge had failed to pronounce on all the points raised by the cross-appellant in its notice of preliminary objection. It is submitted that the cross-appellants addressed the court on the effect of S.75 of the Electoral Act, which made it a condition precedent that the cross-respondents were required to give pre-action notice. The submissions of counsel in relation to the S.75 is reproduced on page 10 of the records of proceedings of the lower court brought by the cross-appellant. What was said by Mr. Eghobamien of counsel was:-

“Section 75 of Electoral Act allows them to sue after a failure of registration. They are not blocked out from contesting in the court of law. That is all.”

This appears to be the only reference, I can find from the records. It seems to me that the cross-appellant is making a storm in a tea cup. The action of the cross-respondent is not concerned with the refusal to register them as Political Parties within the provisions of S.75 of the Electoral Act which provides-

“The decision of the Commission to refuse to register any association as a Political Party may be challenged in a court of law: provided that any legal action challenging the decision of the Commission shall be commenced within 14 days from the date of receipt of the letter of notification of non-registration from the Commission or the expiration of the 30 days referred to in section 74 sub-section (6) of this Act.”

The case of the cross-respondents was concerned only with the constitutionality of the guidelines and of some of the provisions of the Electoral Act. In my view the provisions of S.75 of the Act have no relevance whatever to the decision made by the learned trial Judge. If he had not referred to it in his ruling on the preliminary objection, I believe he was right, because it ought to be ignored for irrelevancy. That is why I have decided not to delve into Issue No.3 as it is clearly, irrelevant and has no bearing on the matter at hand.

At the end of the day, I dismiss the cross-appeal as it is devoid of any merit. I allow the appellants’ appeal and I set aside the part of the judgment refusing the declarations sought by the appellants. I accordingly, declare guidelines 3(a), 3(c), 3d(iv), 3(e), 3(f), 3(g), 3(h), 2(d) and 5(g), 3(h), 2(d) and 5(b) unconstitutional, therefore, null and void. Similarly, I declare sections 74(2)(g) and (h), 74(6), 77(b), 78(2)(b) and S. 79(2)(c) of the Electoral Act 2001, as unconstitutional, therefore, null and void. I also restrain INEC, its agents, officers, privies from basing the registration of Political Associations as Political Parties on the aforesaid offending provisions of the guidelines and the Electoral Act, 2001.

I make no order as to costs.

Other Citations: (2002)LCN/1280(CA)

Alhaji Abdulkadir Balarabe Musa & Ors. V. Independent National Electoral Commission & Anor. (2002) LLJR-CA

Alhaji Abdulkadir Balarabe Musa & Ors. V. Independent National Electoral Commission & Anor. (2002)

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