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.
On the specific question of whether the 1st Respondent (INEC) is an agency of the Federal Government within the meaning of agency in section 251 of the 1999 Constitution, learned Appellant’s counsel contended that the provision of section 6 of the INDEPENDENT NATIONAL ELECTORAL COMMISSION (ESTABLISHMENT. ETC.) DECREE No. 17 of 1998 was not drawn to the attention of this Court in OBASANYA V. BABAFEMI (2000) FWLR (Part 15) 2585 and NECHA V. INEC & ORS (2002) FWLR (Part 12) 2062 and that they were decisions reached per in curiam.
It vas urged therefore that the two decision be overruled. It was submitted in conclusion that the 1st Respondent cannot be regarded as an agency of the Federal Government since the Federal Government cannot be vicariously liable for its acts, omissions or commissions. He relied on ATTORNEY GENERAL OF THE FEDERATION V. AJAYI (2000) 1 WRN (VOL. 2) 105.
In his reaction, learned counsel for the 1st Respondent, S. O. Ibrahim, submitted in substance that the construction given to the expression “any of the agencies” in section 230(1) of the 1979 Constitution in the Case of UNIVERSITY OF ABUJA V. OLOGE (1996) 4 NWLR (Part 445) 706 at 725 applies since section 251 of the present Constitution is in pari material with the former. He relied further on OBASANYA V. BABAFEMI (2000) FWLR (Part 15) 2585 at 2606 – 2607 which adopted the meaning given to the expression “any of its agencies” in this court par Oguntade, JCA. In UNIVERSITY OF ABUJA V. OLOGE (supra) and NECHA V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR. (2000) FWLR (Part (2) 2062 at 2078.
In his own reaction, learned counsel for the 4th Respondent Otunba A. B. Kalejaiya argued in much the same line as counsel for the 1st Respondent. He also relied on the principles in UNIVERSITY OF ABUJA (SUPRA) and OBASANYA V. BABAFEMI (SUPRA).
He referred, in particular, to section 6 of the Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998 and submitted that the word ”IDEPENDENT” added therein only relates to and asserts the independence of the 1st Respondent in carrying out its functions. He contended that:
In the Appellant’s Reply Brief, learned counsel for the Appellant stated reasons why he thought the principles in UNIVERSITY OF ABUJA V. OLOGE (supra) and MOHAMMED MUBARAK ALI V. C.B.N. (1997) 4 NWLR (Part 498) 192, would not apply to the facts of this case. He reiterated the independent status given to the 1st Respondent by section 6 of the Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998 and contended that whereas the University of Abuja and CBN are subject to the direction and control at some person or authority of the Federal Government and therefore come within the definition of “any of its agencies” in section 251 of the 1999 Constitution, the 1st Respondent (INEC) is, by virtue of the aforesaid section 6 of Decree No. 17 of 1998, not subject to such discretion and control.
I have considered the arguments of counsel for the parties on the sole issue for determination. It is a narrow one. And it is better by virtue of the provisions of section 6 of the Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998, the 1st Respondent (INEC) is not one of the agencies of the Federal Government in section 251 of the 1999 Constitution over which, jurisdiction is reserved exclusively for the Federal High Court. In the first place there has been some conflict of opinion in this Court on the tenor of the proviso to section 251 (l), (p), (q) & (r) of the Constitution.
One opinion is that in view of the aforesaid proviso to the provisions the exclusive jurisdiction of the Federal High Court does not extend to matters where a person seeks redress against the Federal Government or any of its agencies for damages, injunction or specific performance and where the action is based on any enactment, law or equity, and afortiori that a State High Court also has jurisdiction to entertain. See THOMPSON ORGANISATIONS LTD & ORS. (2001) 15 NWLR (Part 736) 305 at 323; PETROLEUM (SFECIAL) TRUST FUND V. INTEGRATED FACILITY MANAGEMENT SERVICES LTD. (2002) 16 NWLR (Part 794) 586 at 600-601; OKAFOR V. HASHIM (2001) 1 NWLR (Part 693) 183 at 192, and NEPA V. ADESANJI (2002) 17 NWLR (Part 797) 578 at 612.
The other opinion is that notwithstanding the said proviso to section 251 (1) (p) (q) & (r), the Federal High Court has exclusive jurisdiction in matters that come thereunder. See MOHAMMED MUBARAR ALI V. CENTRAL BANK OF NIGERIA (1997) 4 NWLR (Part 498) 192 at 203-204.
The conflicts have now been settled by the Supreme Court in NEPA V. EDEGBERO & ORS. (2002) 18 NWLR (Part 798) 79 where it was held that the Federal High Court has exclusive jurisdiction also in the matters coming within the proviso to section 230(1) (q) (r) & (s) of the 1979 Constitution which is in pari material with the provisions in section 251 of the 1999 Constitution.
Now on the specific question of whether the 1st Respondent (INEC) is an agency of the Federal Government within the meaning of section 251 of the Constitution this court, in UNIVERSITY OF ABUJA V. PROF. OLOGE (supra) construed the expression “any agency of the Federal Government” in the section to include all organs established by law through which the Federal Government carries out its functions. And in OBASANYA V. BABAFEMI (2000) FWLR (Part 15) 2585 at 2606-2607, this Court, relying and adopting the meaning ascribed to the expression in UNIVERSITY OF ABUJA V. PROF. OLOGE (supra) held that the Independent National Electoral Commission (INEC) is an organ established by the Federal Government as her agency through which it carries out her statutory function of ensuring the participation by the people in their governance and consequently that the State High Court has no jurisdiction to entertain any matter against it for declaration or injunction. Again in CHIEF LAMBERT MECHA V. INEC (supra) this Court held that the Independent National Electoral Commission (INEC) ia an agency of the Federal Government within the meaning of the expression “any agency of the Federal Government” in section 251 of the Constitution.
The submission of the Appellant is that section 6 of the Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of the 1998 created such a status of the 1st Respondent (INEC) distinct from an ordinary agency of the Federal Government envisaged in section 251 of the 1999 Constitution and that consequent thereof the decisions of this Court in OBASANYA V. BABAFEMI (supra ) and MECHA V. INEC (supra) about the 1st Respondent being an agency of the Federal Government were decisions given per in curuam having made without reference to the mandatory provisions of the aforesaid section 6 of Decree No. 17 of 1998.
We were therefore called to overrule these two previous decisions of this Court. It is settled principle that the Court of Appeal is bound by its own previous decisions except in any of the following circumstances-
(a) where there are two conflicting decisions of the Court, it is entitled to decide which of them it would follow; or
(b) it will refuse to follow its own decision which though not expressly overruled, cannot in its opinion stand with a decision of the Supreme Court; or
(c) where its previous decision was given per incuriam, it is not bound to follow it.
See OSUMANU V. ADAMU (1949) 12 WACA 437, USMAN V. UMARU (1992) 7 NWLR (PART 254 at 398-399; ELUFIOYE V. HALILU (1990 2 NWLR (Part 130) 1 at 26; MADIKE V. INSPECTOR-GENERAL OF POLICE (1992) 3 NWLR (Part 227) 70; OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (Part 184) 157 and U.B.A. LTD. TAAN (1993) 4 NWLR (Part 287) 368 at 378.
The relevant provisions of section 6 of the INEC Decree No.17 of 1998 on which the submission of the Appellant is predicated says-
“In the discharge of its functions under this Decree, the Commission shall not be subject to the direction or control of any person or authority.”
On this be properly construed to have removed the INEC from the list of agencies of the Federal Government over which jurisdiction is reserved exclusively for the Federal High Court under section 251 of the Constitution? I am inclined to answer this poser in the negative for two reasons-
Firstly, it is my view that any provision in a statute which purports to remove, limit, widen or otherwise vary the existing jurisdiction of a court must be clear, specific and unequivocal. The tenor of the provision cannot be assumed or implied. It must be such clear provision that does not leave the courts and the parties guessing as to the scope and extent of the jurisdiction. In other words no provisions of a statute can be construed to confer, limit or vary the given decision of a court by implication.
In TIMITIMI V. AMABEBE (1953) 14 WACA 374 at 376 the West African Court of Appeal stated the principle thus-
“In the first place want of jurisdiction is not to be presumed as to a court of superior jurisdiction, nothing is out of its jurisdiction but that which specially appears to be so. On the other hand an inferior court, such as a Native Court is not expressly provided.”
In ATTORNEY-GENERAL OF THE FEDERATION & ORS. V. C.O. SODE (1990) 1 NWLR (Part 128) 500 at 541 the Supreme Court restated the principle in the following terms:
“where jurisdiction is not expressly conferred by statute a court should interpret the provisions so as to confer jurisdiction by implication.”
See also ARIYO V. OGELE (1968) 1 ALL NLR 1; OSADARE V. A-G BENDEL STATE (1991) 1 NWLR (Part 109) 525 at 572 and NAHMAN V. WOLOWIEZ (1993) 3 NWLR (Part 282) 443 at 454. Section 6 of the Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998 does not contain any express provision removing the INEC from the list of agencies or organisation of the Federal Government over which jurisdiction is reserved for the Federal High Court. And the section cannot on the above authorities be construed to have removed or curtailed the exclusive jurisdiction of the Federal High Court by implication. In the light of the above I do not with respect, agree with learned counsel for the Appellant that the decisions in OBASANYA V. BABAFEMI and NECHA V. INEC are per incuriam.
The second reason is this. The jurisdiction of the Superior Courts is derived from the Constitution. It is the Constitution that provides the clue to any controversy about the jurisdiction of any of our Superior Courts of Record. The consequence is that any provision in a statute which purports to confer on a Superior Court jurisdiction contrary to that provided by the Constitution is null and void to the effect of its inconsistency.
See CHIEF ETUEDOR UTIH & ORS V. JACOB UMURHURHU ONOYIVWE & ORS. (1991) 1 NWLR (Part 166) 166 at 225. This follows that it is the 1999 Constitution that determines the extent of jurisdiction of any of the Superior Court established thereunder including the Federal High Court and State High Courts. The Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998 was, as at the 29/5/99 an existing laws within the meaning of the provisions of section 315 of the Constitution and shall only have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution (underlining mine), The Decree is deemed to be an act of the National Assembly and any provision therein including section 6 which purports to remove, curtail or otherwise vary the jurisdiction of the Federal High Court under section 251 of the Constitution is null and void to the extent of its inconsistency.
Thus even if section 6 of the INEC Decree No. 17 of 1998 bears the meaning ascribed to it by learned counsel for the Appellant (which I do not concede) it is null and void.
For these two reasons I shall resolve the only issue in favour of the Respondents. I have no reason to disturb the decision of the Court below which I therefore affirm. The appeal is accordingly dismissed. I assess the costs of this appeal at N5, 000.00 in favour of the 1st and 4th Respondents.
Other Citations: (2003)LCN/1389(CA)