CORAM
MUHAMMADU LAWAL UWAIS, CHIEF JUSTICE, NIGERIA
SALIHU MOBIDDO ALFA BELGORE, JUSTICE, SUPREME COURT
UWANI MUSA ABBA AJI
AKINTOLA OLUFEMI EJIWUNMI , JUSTICE, SUPREME COURT
EMMANUEL OLAYINKA AYOOLA, JUSTICE, SUPREME COURT
PARTIES
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION2. ATTORNEY-GENERAL OF THE FEDERATION APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Respondents each applied to the Independent National Electoral Commission for registration as a political party whereupon the Independent National Electoral Commission (INEC) released guidelines for the registration of political parties. The Plaintiffs/Respondents were of the view that the guidelines 2(c) and (d), 3 (a),(c), (d) (iv),(e) (f), (g), (h); and 5(b) (“the impugned guidelines”) were inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 relating to the registration of political parties and should therefore not be made to comply with the guidelines. By an Originating summons, the Plaintiffs/Respondents in the Federal High Court sought some declaratory reliefs among which are a declaration that the registration of political parties in Nigeria is governed by the provision 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 Guideline, for the registration of Political Parties’ dated the 15th day of May, 2002 issued by the 1st defendants, 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 State Executive Committees, and the records of proceedings of the meetings where both members of its National and State Executive Committees were elected. The trial judge granted some reliefs in full, some in part while others were not granted hence an appeal to the Court of Appeal by the Plaintiffs/Respondents. The 1st Defendant/Respondent also cross-appealed and the Court of Appeal allowed the main appeal by the Plaintiffs, setting aside part of the judgment of the trial court refusing several of the reliefs sought by the Plaintiffs and dismissed in its entirety the cross- appeal by the 1st Defendant/Respondent.
HELD
Appeal Succeeds in Part.
ISSUES
Whether the National Assembly is not competent to enact the impugned provisions of the Act and thereby the same were rendered unconstitutional and void; andWhether the impugned guidelines were not within the provisions of the Constitution with regard to the registration of Political PartiesWhether, as regards the impugned provisions of the Act, the Constitution empowered the National Assembly to set additional conditions of eligibility for the functioning of political associations as political parties and, as regards the guidelines prescribed by INEC, whether the Constitution had also empowered, or had authorized the National Assembly to legislate to empower INEC to set such additional conditions.Whether, in regard to each of the impugned provisions, any or which of them amounted to such additional conditions beyond those prescribed by the Constitution
RATIONES DECIDENDI
RULE OF INTERPRETATION – THE RULE OF INTERPRETATION IS THE INTENTION OF THE LAWMAKER
“The golden and main rule of the interpretation of statutes, including the Constitution, is the intention of the lawmaker. Once the intention of lawmaker is clear, resort cannot be made to any liberal interpretation of the Constitution. This is because a liberal interpretation of the Constitution beyond and above the intention of the lawmaker will amount to the Judge making law”. PER NIKI TOBI, JSC
SUPREME COURT – THE SUPREME COURT IS COMPETENT TO ENTERTAIN A POINT OF LAW RAISED FOR THE FIRST TIME BEFORE IT WHEN THE JUSTICE OF THE CASE DEMANDS
“It is also the law that the Supreme Court, as a court of last resort, is competent to entertain a point of law raised for the first time before it when the justice of the case demands. Such point must, however, be a substantial point. However, the Supreme Court may refuse to entertain a question of law if it is satisfied that the court below would have been in a more advantageous position to deal with the matter. See Nigerian Bottling Company Ltd. v. Ngonadi (1985) 1 NWLR (Pt.4) 739. See also Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393”. PER NIKI TOBI, JSC
FAIR HEARING – MEANING OF FAIR HEARING
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles.”PER NIKI TOBI, JSC
NATIONAL ASSEMBLY – THE SUPREMACY OF THE NATIONAL ASSEMBLY IS SUBJECT TO THE OVERALL SUPREMACY OF THE CONSTITUTION
“The supremacy of the National Assembly is subject to the overall supremacy of the Constitution. Accordingly, the National Assembly which the Constitution vest powers cannot go outside or beyond the Constitution. Where such a situation arises, the courts will, in an action by an aggrieved party, pronounce the Act unconstitutional, null and void. See Attorney General of Abia State v. Attorney-General of the Federation (2002) 6 NWLR (Pt. 763) 264, (2002) 5 SCM 1”. PER NIKI TOBI, JSC
POLITICAL PARTIES – MEANING OF POLITICAL PARTIES
“Political parties are essential organs of the democratic system. They are organs of political discussion and of formulation of ideas, policies and programmes.” PER AYOOLA, JSC
STATE LAW – WHETHER A STATE LAW WHICH MERELY COVERS THE LEGISLATIVE FILED OF THE NATIONAL ASSEMBLY IS HARMFUL
“A State law which is not necessarily inconsistent with either the Constitution or an Act of the National Assembly but merely covers the legislative field of the National Assembly is not that harmful as it is merely a surpulsage”. PER NIKI TOBI, JSC
POLITICAL PARTIES –ESSENCE OF PLURALITY OF PARTIES
“Plurality of parties widens the channel of political discussion and discourse, engenders plurality of political issues, promotes the formulation of competing ideas, policies and programmes and generally provides the citizen with a choice of forum for participation in governance, whether as member of the party in government or of a party in opposition, thereby ensuring the reality of government by discussion which democracy is all about in the final analysis.” PER AYOOLA, JSC
ASSOCIATION AND POLITICAL PARTY – MEANING OF ASSOCIATION AND POLITICAL PARTY
“Association” means anybody or persons corporate or unincorporated who agree to act together for any common purpose, and includes an association formed for any ethnic, cultural, occupational or religious purpose; and “political party” includes any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or of a local government council.”PER AYOOLA, JSC
REGISTRATION OF POLITICAL PARTY – ESSENCE OF REGISTRATION OF POLITICAL PARTY
“Registration of political parties facilitate the exercise of the regulatory and monitoring powers of INEC which are within the purview of the legislative competence of the National Assembly”. PER AYOOLA, JSC
DOCTRINE OF COVERING THE FIELD – WHEN DOES THE DOCTRINE OF COVERING THE FIELD ARISE
“The doctrine of covering the field can arise in two distinct situations. First, where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted which the Constitution has already made provisions covering the subject matter of the Federal Act or the State Law. Second, where a State House of Assembly, by the purported exercise of its legislative powers enacted a law which an Act of the National Assembly has already made provisions covering the subject matter of the State law. In both situations, the doctrine of covering the field will apply because of the “federal might” which relevantly are the Constitution and the Act.”PER NIKI TOBI, JSC
FEDERAL GOVERNMENT CIVIL PUBLIC SERVICE RULES – RULES 04421 AND 04422 OF THE FEDERAL GOVERNMENT CIVIL PUBLIC SERVICE RULES
“The current Federal Government Civil (Public) Service Rules provide in Rules 04421 and 04422 as follows:
04421. – No officer shall, without express permission of the Government, whether on duty or leave of absence:
(a) hold any office, paid or unpaid, permanent or temporary, in any political organization;
(b) offer himself or nominate anyone else as a candidate for any elective office including membership of a Local Government Council, State or National Assembly;
(c) engage in canvassing in support of political candidates. Nothing in this rule shall be deemed to prevent an officer from voting in an election.
04422. – Resignation necessary before seeking elective public office. Howbeit, any officer wishing to engage in partisan political activities or seek elective public office shall resign his appointment forthwith.” PER UWAIS, JSC
CIVIL PUBLIC SERVICE RULES – WHETHER THE CIVIL PUBLIC SERVICE RULES ARE LEGISLATION AS PROVIDED BY THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA
“The Civil (Public) Service Rules are not legislation per se as provided by the Constitution nor subsidiary legislation, as they are not made under any enabling Act or Law.” PER UWAIS, JSC
REGULATION OF POLITICAL PARTIES BY THE STATE – FORMS OF REGULATION OF POLITICAL PARTIES BY THE STATE
“Regulation of political parties by the State manifests in the fact that the Constitution itself has set conditions for the existence and recognition of political parties and empowered the National Assembly to legislate for the regulation of political parties that may have already fulfilled the conditions of eligibility to function as political parties as prescribed by section 222 of the Constitution. Regulation of political parties by the State therefore comes in two forms, namely: regulation directly by the Constitution as in section 222 and regulation authorised by the legislature or other agency of the State as may be permitted by the Constitution. It follows that any attempt to regulate political parties not by the Constitution itself or by its authority is invalid”. PER AYOOLA, JSC
RECOGNITION OF POLITICAL ASSOCIATIONS AS POLITICAL PARTIES – WHETHER IT IS THE ROLE OF A CONSTITUTION TO PROVIDE FOR ALL CONDITIONS IN RESPECT OF THE RECOGNITION OF POLITICAL ASSOCIATIONS AS POLITICAL PARTIES
“It is not the role of a Constitution to provide for all conditions and situations in respect of the recognition of political associations as political parties. The Constitution, the fons et origo of the legal System, cannot provide for all conditions, and situations in respect of recognition of political association as political parties”. PER NIKI TOBI, JSC
REGISTRATION OF POLITICAL PARTY – MEANING OF REGISTRATION OF POLITICAL PARTY
Registration is the process of recording the existence of a political party and it provides evidence and certification of compliance with section 222 of the Constitution. It is evident that a political party cannot be registered as being in existence unless the association has satisfied the conditions of eligibility in section 222. It is therefore clear that the power to register is not the same as and does not include the power to declare the conditions of eligibility”. PER AYOOLA, JSC
REGISTRATION OF POLITICAL PARTIES – THE INDEPENDENT NATIONAL ELECTORAL COMMISSION HAS POWER TO REGISTER POLITICAL PARTIES
“INEC has direct power granted by the Constitution to register political parties. Any enactment of the National Assembly referable to this purpose cannot be held invalid. By the same reasoning any guideline or regulation made by the Commission that carries into execution the same purpose cannot be unconstitutional.”PER AYOOLA, J S C
FUNDAMENTAL RIGHT OF A CITIZEN – FUNDAMENTAL RIGHT OF A CITIZEN UNDER SECTION 40 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (‘’the Constitution”) provides that:
“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.” PER AYOOLA, JSC
ACT – EFFECT OF AN ACT BEING INCONSISTENT WITH THE PROVISIONS OF THE CONSTITUTION
“An Act which is inconsistent with the provisions of the 1999 Constitution will be null and void ab initio. See Attorney-General of Abia State v. Attorney-General of the Federation (2002) 6 NWLR (Pt. 763) 264 (2002) 5 SCM 1; Attorney-General of Ondo State v. Attorney-General of the Federation (2002) 9 NWLR (Pt.772) 222 (2002) 9 SCM 1”. PER NIKI TOBI, JSC
PROVISIONS IN A CONSTITUTION – PROVISIONS IN A CONSTITUTION ARE OF EQUAL STRENGTH AND CONSTITUTIONALITY
“Provisions in a Constitution are of equal strength and constitutionality. No provision is inferior to the other and a’ fortiori no provision is superior to the other. We do not have here a situation of an Act of the National Assembly or a Law of the House of Assembly of a State; where those legislation play an inferior role in respect of a constitutional provision”. PER NIKI TOBI, JSC
QUESTION OF LAW – INSTANCES WHERE THE SUPREME COURT MAY REFUSE TO ENTERTAIN A QUESTION OF LAW
“However, the Supreme Court may refuse to entertain a question of law if it is satisfied that the court below would have been in a more advantageous position to deal with the matter. See Nigerian Bottling Company Ltd. v. Ngonadi (1985) 1 NWLR (Pt.4) 739. See also Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393”. PER NIKI TOBI, JSC
POLITICAL PARTY – DISTINCTION BETWEEN RECOGNITION AND REGISTRATION OF A POLITICAL PARTY
“According recognition to a political party is the fact of acceptance of the existence of an association eligible to function as a political party, while registration is the recording and certification of that fact”. PER AYOOLA, JSC
INTERPRETATION OF THE CONSTITUTION – LIMITATION ON THE APPELLATE COURT IN ADOPTING THE LIBERAL APPROACH TO INTERPRETING THE CONSTITUTION
“Liberal approach to the interpretation of the Constitution is good in relevant situations, but this court cannot do so excessively to the extent that it destroys the fabrics of constitutionalism and constitutionality. All interpretation of the Constitution must bow or kowtow to these twin principles or pillars of constitutional law in our democracy in which the rule of law, democracy’s lifeblood, triumphs to the egalitarian advantage of Nigeria and its people”. PER NIKI TOBI, JSC
ELECTORAL GUIDELINES – DISTINCTION BETWEEN GUIDELINES WHICH ARE ADMINISTRATIVE OR PROCEDURAL OR EVIDENTIAL IN NATURE
Guidelines which are administrative in nature merely relate to the administrative mechanism of the process of registration. Guidelines which are of a procedural nature relate to the procedure to be followed in seeking registration. Evidential guidelines relate to proof of compliance with the conditions of eligibility. Where the requirements for registration stated in any guideline or in the Act are not purely administrative or procedural or evidential, but are substantive conditions for eligibility beyond the conditions prescribed by section 222 such guidelines or provisions would have enlarged the conditions eligibility in section 222 and be consequently void, notwithstanding that they have been described as requirements for registration”. PER AYOOLA, JSC
CASES CITED
Attorney General, Abia State and 35 others v. Attorney General of the Federation [2002] 6 NWLR( (Pt. 763) 264 (2002) 5 SCM 1
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999Electoral Act, 2002Federal Government Civil Public Service Rules