Alliance for Democracy (Ad) & Ors V. The Independent National Electoral Comission (Inec) (2003)

LawGlobal-Hub Lead Judgment Report

F. TABAI, J.C.A.

This action was filed at the Osogbo Judicial Division of the High Court of Osun State. The reliefs claimed by the Plaintiff/Appellant against the Defendants/Respondents jointly and severally were for-

“(a) A declaration that under and by virtue of the provisions of part 1 paragraph 15 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act 2001, the 1st Defendant has the duty to organize, conduct and supervise State Assemblies Election, including Bye-Elections. Arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise and/or update the register of voters for the purpose of any election under the said Constitution.

(b) A declaration that the 1st Defendant is bound by the decision of the meeting held on or about Wednesday April 24th under the Chairmanship of Chief of the Armed Forces of the Federal Republic of Nigeria in which the Chairman and Officers of the 1st Defendant, Chairman of the Thirty-six states of the Federation, Heads of all security Agencies and the speakers of State House of Assemblies of the Thirty-six States of the Federation were present to the effect that no democratic election can be held anywhere in the Federation unless and until the register of voters made in 1998 is revised and that the 1st Defendant shall revise update the register of voters before any election is held or conducted.

(c) A declaration that the 1st Defendant cannot validly, legally and constitutionally conduct any election in Osun State until the register of voters is revised and all the parties to the election agree to same.

(d) An order of injunction restraining the 1st Defendant either by itself, agents, servants, officers, officials or any person or persons howsoever from organizing, conducting, supervising, ordering or take any step whatsoever to organize, conduct, supervise or order any election whatsoever called into Osun State House of Assembly in respect of Ife Central Local Government Constituency in Osun State or any other Constituency in Osun State until the final determination of the substantive suit.

(e) An Order of Injunction restraining the 1st Defendant either by itself, servants, agents officers, officials, or any person or persons howsoever from arranging, ordering, organizing, supervising or take any step whatsoever to arrange, order, organize or supervise any election into the Osun State House of Assembly in respect of Ife Central Local Government Constituency in Osun State unless and until the Register of voters is revised and/or updated in accordance with the relevant provisions of the enabling Laws or statutes guiding democratic election in Nigeria.

(f) An Order of Injunction retraining the 2nd and 3rd Defendants either by themselves, servants, agents, privies, officers, officials or any person or persons howsoever from sponsoring and/or fielding candidates for the purpose of any elections into the Osun State House of Assembly to fill the vacant seat of Ife Central Constituency of Osun State until the final determination of the substantive suit.

By a Notice of preliminary Objection dated the 8th May 2002 the 1st Defendant/Respondent challenged the jurisdiction of the High Court of Osun State and the competence of the action itself. The main ground of the challenge is the provision of section 251 of the 1999 Constitution. Arguments were taken on the motion. And in a considered ruling on the 27th May 2002 the learned trial judge B.O. Babalola, J. sustained the objection on the ground that the High Court of Osun State lacked jurisdiction to entertain the suit and same was accordingly struck out.

The present appeal is against that ruling. The parties through their counsel filed and exchanged Brief of Argument. The Appellants Brief settled by Rowland Otaru of A. Awomolo & co. and same was filed on 25/10/2002. 1st Respondent’s Brief was prepared by S.O. Ibrahim and same was filed on the 6/12/2002. And the 4th Respondent’s Brief prepared by Otunba Kalejaiye was filed on 9/1/2003. The 2nd and 3rd Respondents did not file Briefs. The Appellant filed a Reply to the Brief of the 1st and 4th Respondents. It was filed on the 17/1/2003.

Learned counsel for the Appellant, 1st and 4th Respondents all agree that from the three grounds of appeal filed only one issue called for determination and it iswhether having regard to the independent National Electoral Commission (Establishment, Etc.) decree No. 17 of 1998 the 1st Respondent (INEC) is an agency of the Federal Government of Nigeria.

On this sole issue learned counsel for the Appellant, Rowland Otaru, proffered the following arguments. He referred to section 5(1) (2) and (3) of the National Electoral Commission Act Cap. 25 Laws of the Federation 1990 and section 6(1) (2) and (3) of the National Electoral Commission of Nigeria (Establishment, Etc.) Decree No. 3 of 1996 in contradistinction to section 1, 3, 4, 6 and 11 of the current INDEPENDENT NATIONAL ELECTORAL COMMISSION (ESTABLISHMENT, ECT.) DECREE NO.17 OF 1998.

He contended that while under the former Statutes the Electoral Commission was subject to the direction and control of government and was therefore an agent of the Federal Government under the current law the Independent Electoral Commission is not subject to such government control and is, as the name implies completely independent of government. He contended therefore that the 1st Respondent was not an agent of the Federal Government.

He referred to the word ‘INDEPENDENT’ and contended that it be given its ordinary grammatical meaning according to the principles of construction of statutes and cited a number of authorities including AFRICAN NEWSPAPERS V. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR (Part 6) 137; AWOLOWO V. SHAGARI (1979) 6-7 SC. 51; ABIOYE V YAKUBU (1991) 5 NWLR (Part 190) 130 at 200- 201 and IFEZUE V MBADUGHA (1984) I SCNLR 427.