INEC v. Advanced Congress Of Democrats (ACD) & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Lead Ruling)

By an Amended Originating Summons filed before the Federal High Court, Abuja Division on 29/10/2019, the 1st – 22nd respondents and 10 other political parties sought the determination of the following questions:

i. Whether the provisions of Section 225A, b(i), b(ii), c(i) c(ii) and c(iii) of the Constitution of Federal Republic of Nigeria 1999 introduced by the 4th Alteration Act No. 9 of 2017 are to be construed disjunctively/alternatively or whether they are to be construed conjunctively.

ii. Whether the 2nd Defendant can exercise any power under Section 225A(b)and(c) of the Constitution of the Federal Republic of Nigeria, 1999 without conclusive and democratic elections being first held and concluded into all electoral constituencies of the Federation.

​iii. Whether having regard to the lack of authority by the 2nd Defendant to conduct and determine the winners for Chairmanship and Councillorship election into Local Government and Wards in the Federation, the 2nd Defendant should be allowed to exercise power to deregister Political parties for failure to win elections into such seats.

iv. Whether given the notorious, widespread and pervasive irregularities and cancellation of results in many polling units, wards and local governments in the 2019 Presidential, National Assembly, Governorship and State Assembly elections, the 2nd Defendant ought to be allowed to deregister political parties for failure to win seats when these parties could have won but for the irregularities and cancellations of results which were perpetrated by persons other than their agents.

In the event that the questions were answered in the affirmative, they sought the reliefs reproduced hereunder:

1. A Declaration that the provisions of Section 225A b(i), b(ii), c(i), c(ii) and c(iii) of the Constitution of the Federal Republic of Nigeria introduced by the 4th Alteration Act No. 9 of 2017 are intended to be construed disjunctively.
2. A Declaration that the power conferred on the 2nd Defendant by Section 225A (b)and(c) of the Constitution of the Federal Republic of Nigeria 1999 to deregister political parties could not have been intended to have any retroactive effect and as such elections into

all electoral constituencies must first be held before the power of the 2nd Defendant under this section can accrue.

3. A Declaration that the 2nd Defendant cannot exercise power to deregister political parties for failure to win Chairmanship and Councillorship elections as the 2nd Defendant is not the body responsible for conducting elections into these positions, more so that the 2nd Defendant has no control over the various state electoral bodies responsible for the conduct of these elections.
4. A Declaration that having regard to the notorious, widespread and pervasive irregularities and cancellation of results in many polling units, ward, local governments during the 2019 Presidential, National Assembly, Governorship and State Assembly elections, the 2nd Defendant cannot be allowed to deregister political parties for failure to win seats or certain percentages of the votes cast at the 2019 general election as these political parties could have won but for irregularities and cancellations perpetrated by persons who are not agents of the political parties.
5. An Order of Injunction restraining the 2nd Defendant, from exercising the powers

conferred on it by Section 225A(b)and(c) of the Constitution of the Federal Republic of Nigeria, 1999 until conclusive and democratic elections are held into the Presidency, all Governorship, National Assembly, State Assembly, Local Government Chairmanship and Councillorship positions in the Federation, which elections must have been held after this section was introduced.

6. An Order of Injunction restraining the 2nd Defendant from exercising its power to deregister the plaintiffs or any political party for that matter as the 2nd Defendant does not have the power to conduct elections into all the positions listed in Section 225A(b)and(c) of the Constitution of the Federal Republic of Nigeria, 1999.
7. An Order of Injunction restraining the 2nd Defendant from deregistering the plaintiffs or any political party for that matter for failure to win seats or certain percentages of the vote cast at the 2019 general election as these political parties could have won but for irregularities and cancellations perpetrated by persons who are not agents of the political parties.
   (Emphasis mine)
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   The Originating Summons was supported by a 45-paragraph affidavit, exhibits and a written address. The 2nd respondent filed a counter affidavit and written address to which the appellant filed a further affidavit in support of the Originating Summons and a written address.

In the course of the proceedings, an interim order of injunction was granted on 17/2/2020 restraining the 2nd defendant from de-registering the plaintiffs pending the hearing of the substantive suit. The Plaintiffs had also filed an application for interlocutory injunction restraining the 2nd defendant from deregistering them pending the determination of the substantive suit. Ruling on the application was fixed for 17/2/2020. It was averred in the plaintiffs further and better affidavit in support of the summons deposed to on 01/06/2020, that despite being served with the said motion, the 2nd defendant, on 6/2/2020 while the ruling was still being awaited, deregistered all the plaintiffs except the 6th Respondent (African Democratic Congress) and the 9th respondent (Labour Party).
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In a considered judgment delivered on 11th day of June 2020, the Originating Summons was dismissed in the following terms at pages 305 – 306 of the record:

“1. That provision of Section 225A(b)and(c) in the 1999 Constitution of Federal Republic of Nigeria (as Amended) Fourth Alteration Act No. 7 of 2017 is to be interpreted disjunctively.

2. That the 2nd Defendant has powers under the said Section 225A(b)and(c) to de-register the Plaintiffs for non-compliance with the provisions of the said Section.
3. That reliefs 4 and 7 are not within the jurisdiction of this Court to entertain/or grant.
4. That since the coming into effect of Section 225A(b)and(c) elections have been held throughout Nigeria. Plaintiffs did not win any seat, if they did they would have shown material facts to that effect i. e. exhibiting their “Certificate of Return’.
5. Finally, it is the considered view of this Court that plaintiffs faded to prove their case.
   The reliefs sought cannot be granted and the Interim Order of injunction made on 17/2/2020 is hereby set aside.
   No order as to costs.”
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   The respondents were dissatisfied and appealed to the lower Court. They subsequently discontinued the appeal against the original 1st- 12th respondents who were among the original plaintiffs.

The sole issue for determination considered by the lower Court at page 509 of Vol. 2 of the record reads thus.

“‘Whether the trial Court correctly construed the provisions of Section 225A,(b)and(c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) disjunctively and held that the 2nd Respondent has powers to de-register the Appellants for non-compliance with the said provision AND whether the Court correctly held that the Appellants failed to prove their case to be entitled to the reliefs sought,”

After careful consideration of the arguments advanced by the parties, the appeal was allowed in part. The Court declared thus:
“1. The de-registration of the appellants by the 2nd Respondent is illegal.