Labour Party V. Independent National Electoral Commission & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, sitting in Calabar Judicial Division, delivered on 11th November, 2011 in Suit No FHC/CA/CS/82/2011.

Suit No FHC/CA/CS/82/2011 had commenced at the Abuja Judicial Division of the Federal High Court but was later transferred to the Calabar Division of the Court, upon Order of the Abuja Division of the Court made on 30th March, 2011. The 2nd Respondent was not originally a party in the suit but was joined, upon its application, by Order of this Court made on 16th January, 2013.

The Appellant, as plaintiff in the lower court, took out on originating summons against the 1st Respondent, seeking a resolution of the following questions:

i. WHETHER the provisions of the Electoral Act as amended on the 29th day of December, 2010 and the Defendant’s Guidelines published under the Electoral Act before if was amended were effective as at the 4th, 6th, 7th and 13th days of January, 2011;

ii. WHETHER the Guidelines issued by INEC Pursuant to the Electoral Act on the 29th day of December, 2010 was not valid and subsisting as at the 29th day of December, 2010;

iii. WHETHER in the light of the failure by a political party to wit the peoples’ Democratic Party to comply with the express provisions of section 87(4) in conjunction with section 85 of the Electoral Act as amended in December, 2010, the Defendant ought not to disqualify the said party from presenting candidates in Cross River State for the April, 2011 elections;

iv. WHETHER in the circumstances the Peoples’ Democratic Party has any candidate whatsoever in the Cross River State with respect to the April, 2011 elections.

v. Consequently, WHETHER the Defendant’s publication of the list of PDP candidates in Cross River State for the 2011 elections is not a nullify;

vi. WHETHER the derogation from the right of the Defendant to “not reject or disqualify candidates for any reason whatsoever” as provided under Section 31(4) of the said Electoral Act as amended was not limited to failure by political parties to “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections” and not extended to other acts of omission or commission of political parties in particular the failure of the Peoples’ Democratic Party to comply with Section 87(4) in conjunction with Section 85 of the Act;

vii. WHETHER the legal effect of the word “shall” in Section 87(4) conjunction with Section 85 of the Electoral Act did not make it mandatory for political parties to wit the Peoples’ Democratic Party to conduct Ward Congresses to determine delegates for the purpose of adopting Indirect Primaries method which if in fact did adopt.

Upon resolution of the above questions, the Appellant sought the following reliefs:

1. A DECLARATION that the provisions of the Electoral Act as amended and assented to on the 29th day of December, 2010 were effective as at the 4th, 6th, 7th & 13th days of January, 2011;
2. A DECLARATION that the Guidelines issued by the Defendant hereof pursuant to the Electoral Act 2010 and prior to the amendment of the Act on the 29th day of December, 2010 were valid and subsisting as at the 29th day of December, 2010 and effective as at the 4th, 6th, 7th & 13th day of January, 2011:
3. A DECLARATION that in the light of failure by a political party in Cross River State that is to say, the Peoples’ Democratic Party to comply with the express provision of Section 87 (4) of the Electoral Act as amended in December, 2010, the Defendant ought to disqualify the said party from presenting candidates in Cross River State for the April, 2011 elections;
4. A DECLARATION that in the circumstances, the Peoples’ Democratic Party has no candidate whatsoever in the Cross River State with respect to the April, 2011 election and further, that the Defendants publication of the list of PDP candidates in Cross River State for the 2011 elections is a nullity;
5. A DECLARATION that the derogation from the right of the Defendant to “not reject or disqualify candidates for any reason whatsoever” as provided under Section 31(1) of the said Electoral Act as amended is limited to failure by political parties to “not later than 60 days before the date appointed for a general election submit to the Defendant in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections” and certainly not extended to other acts of omission or commission of political parties in particular the failure of the Peoples’ Democratic Party to comply with Section 87(4) in conjunction with Section 85 of the Act and that to extend if to Section 87(4), Section 85 and indeed other sections of the Act is to render the Defendant a toothless bulldog incapable of effectively regulating elections in Nigeria:
6. A DECLARATION that the legal effect of the word “shall” in Section 87(4) in conjunction with Section 85 of the Electoral Act made if mandatory for political parties to wit the Peoples’ Democratic Party to conduct Ward Congress to determine delegates for the purpose of adopting Indirect Primaries method which it in fact did adopt;
7. AN ORDER restraining the Defendant from publishing, disseminating and howsoever implementing the results of the so-called primaries organized by the Peoples’ Democratic Party in the light of the complaints enumerated above:
8. AN ORDER mandating the Defendant to disqualify the Peoples’ Democratic Party and its candidates in Cross River State from contesting in the April, 2011 elections for failure to comply with Sections 85 and 87(4) of the Electoral Act of December 29, 2010 as amended.

The trial court, in its Judgment delivered on 11th November, 2011, held at pages 125-126 of the Record of Appeal that:

“The Questions and Reliefs claimed in this suit are identical to that contained in this Court’s judgment, Exhibit A in Suit No FHC/CA/CS/17/2011: Senator Liyel Imoke & 37 Ors. vs. INEC delivered on 24th March, 2011. By virtue of sections 73 and 74(l) and (m) of the Evidence Act this Court must take judicial notice of its judgment as well as other (sic) of different Courts…