CORAM
JOSEPH SHAGBOAR IKYEGH JUSTICE, COURT OF APPEAL
CHINWE EUGENIA IYIZOBA JUSTICE, COURT OF APPEAL
ABIMBOLA O. OBASEKI-ADEJUMO JUSTICE, COURT OF APPEAL
PARTIES
1. NATIONAL CONSCIENCE PARTY (NCP)2. MR. YUSUF MICHAEL OMUYA APPELLANTS
1. NATIONAL ASSEMBLY OF THE FEDERALREPUBLIC OF NIGERIA
2. THE ATTORNEY GENERAL OF THEFEDERAL REPUBLIC OF NIGERIA
3. THE INDEPENDENT NATIONALELECTORAL COMMISSION
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant instituted this action by Originating Summons seeking declarative and injunctive reliefs pursuant to a clause enacted by the 1st Respondent under Section 78(7)(ii) of the Electoral Act empowering the 3rd Respondent (INEC) to deregister political parties for failure to win a seat in the 1st Respondent or a State House of Assembly. The Appellant contended that the said section is inconsistent with Article 10 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990 and Section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended and therefore null and void and of no legal effect. The 1st and 3rd Respondents filed Counter Affidavit to the Originating Summons. The trial court dismissed the suit as lacking in merit. Dissatisfied with the judgment, the Appellant has appealed to this court.
HELD
Appeal Allowed.
ISSUES
Whether the provisions of section 78(7) (ii) of the Electoral Act is constitutional and consistent with the provisions of sections 40, 221- 229 of the Constitution and Article 10 of the African Charter on Human and Peoples’ Rights
RATIONES DECIDENDI
CONSTITUTION – SUPREMACY OF THE CONSTITUTION
“The Constitution is the fons et origo of our legal system. It is supreme and any law emanating from any source in Nigeria must derive its validity from the Constitution. The legislative power of the National Assembly cannot be exercised inconsistently with the provisions of the Constitution. Where that happens, such law is invalid to the extent of the inconsistency. INEC V. Musa (Supra).” PER C. A. IYIZOBA, J.C.A
POWER OF THE NATIONAL ASSEMBLY – LIMITATION ON THE LEGISLATIVE POWER OF THE NATIONAL ASSEMBLY
“The National Assembly which derives its legislative power from the Constitution cannot legislate outside or beyond the Constitution. It can only do what it is empowered to do by the Constitution. Section 228(d) provides that the National Assembly may by law provide for the conferment on the Commission of other powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively … to ensure that the political parties observe the provisions of this part of this chapter”. PER C. A. IYIZOBA, J.C.A
CONSTITUTIONAL RIGHT – CONSTITUTIONAL RIGHT CANNOT BE TAKEN AWAY EXCEPT BY THE CONSTITUTION ITSELF
“A right conferred by the Constitution cannot be taken away by any other statutory provision except by the Constitution itself.” PER C. A. IYIZOBA, J.C.A
DE-REGISTRATION OF POLITICAL PARTIES – WHERE THE POWER TO DE-REGISTER A POLITICAL PARTY IS NOT GIVEN DIRECTLY OR INDIRECTLY BY THE CONSTITUTION, THE PROVISIONS OF THE ELECTORAL ACT DEALING WITH SAME IS UNCONSTITUTIONAL
“Section 78(7ii) of the Electoral Act deals with the power of INEC to de-register parties for failure to win presidential or Governorship election or a seat in the National or State Assembly election. If such power is not given directly or indirectly by any section of the Constitution, then that provision of the Electoral Act is unconstitutional, null and void”. PER C. A. IYIZOBA, J.C.A
ACADEMIC SUIT – DEFINITION OF AN ACADEMIC SUIT
“In Plateau State v. A.G., Federation (2006) 3 NWLR (Pt. 967) 346 @ 419 G-H, Tobi J.S.C. defined a hypothetical or academic suit thus:
“A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situations of human nature and humanity……….
A suit is hypothetical if it is imaginary and not based on real facts. A suit is hypothetical if it looks like a “mirage” to deceive the defendant and the court as to the reality of the cause of action. A suit is hypothetical if it is a semblance of the actuality of the cause of action or relief sought.”
– PER C.A. IYIZOBA, J.C.A
POLITICAL PARTY – DEFINITION OF POLITICAL PARTY – SECTION 229 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
It means 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 a local government council”. PER C. A. IYIZOBA, J.C.A
CASES CITED
STATUTES REFERRED TO
African Charter on Human and Peoples Rights (Ratification and Enforcement) Act L F N 1990
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Electoral Act 2010
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