Independent National Electoral Commission V. Action Congress (Ac) & Anor (2007)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, P.C.A.
The plaintiffs who are now respondents and cross-appellants in this appeal took out an originating summons asking for the following reliefs:-
“I. A declaration that the defendant has no power under the provisions of the Constitution of the Federal Republic of Nigeria; 1999, the Electoral Act, 2006, and the Independent National Electoral Commission (Establishment, Etc) Act, Cap. 15, Laws of the Federation, 2004 to conduct any verification of the credentials/papers and/or screening out and/or disqualifying candidates including the 2nd plaintiff for the 2007 general elections.
II. A declaration that by the provisions of section 32 of the Electoral Act, 2006, only the 1st plaintiff a political party has the power to verify and or screen out its candidates before sponsoring them for election by forwarding their names to the defendant.
III. A declaration that the defendant has no power under the Constitution of the Federal Republic of Nigeria, 1999, Electoral Act, 2006 and the Independent National Electoral Commission (Establishment, Etc) Act Cap. 1-15, Laws of the Federation, 2004 to disqualify or screen out the 2nd plaintiff as a candidate or any other candidate for the 2007 general elections.
IV. A declaration that the power to disqualify any candidate sponsored by any political party including the 1st plaintiff from contesting any election exclusively vested in the court as provided for in section 32(5) of the Electoral Act, 2006.
V. An order setting aside the directive of the defendant to all the political parties including the 1st plaintiff to present their candidates for physical verification and or screening.
VI. An order of perpetual injunction restraining the defendant whether by themselves, their agents, privies, officers, or by whosoever from conducting physical verification and or screening of candidates put forward by political parties to contest in the 2007 general elections including the 2nd plaintiff.
VII. And for such further or other orders as the court may deem fit to make in the circumstances.”
After parties joined issues, both addressed the court and in a reserved and considered judgment, learned trial Judge concluded as follows:-
“Having given due consideration to the processes filed, notably the originating summons, the affidavit in support as well as the counter-affidavit, it is imperative to bring out the fact that the defendant is allotted a vital role to play under Item 15(a) – of the 3rd Schedule to the 1999 Constitution which provides “The commission shall have power to organize, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation”
This provision has assigned a very important duty to the defendant.
In the case of INEC v. Musa (2003) 3 NWLR (Pt. 806) 72, the Supreme Court while considering Guidelines of INEC on Registration of Political Association as Political Parties drew a distinction between guidelines which are administrative or procedural or evidential in nature and guidelines which set substantive conditions beyond those set by the Constitution.
It must be borne in mind that INEC, the defendant as a public body, has been saddled with enormous responsibilities in relation to elective offices under the 1999 Constitution. In order to ascertain that the facts presented to it by candidates are correct as required by both the Constitution 1999 and the Electoral Act, 2006, it will not be out of place for it to cross-cheek, verify or even screen candidates to ascertain the authenticity of the facts presented to it.
This fact will be better appreciated if it is borne in mind that the Constitution by its very nature cannot specify each and every subject matter addressed by it in details.
Section 32(6) of the Electoral Act, 2006 makes it an offence for a political party who presents to the commission (defendant), the name of a candidate who does not meet the qualifications stipulated by the section. It attracts a fine of N500,000.
If the duty or power of the defendant to “monitor” the organization and operation of the political parties, including their finances” as provided for under section 15(c) of the 3rd Schedule to the 1999 Constitution must be realized, then, the defendant will reasonably be expected to verify and/or screen candidates of political parties who are seeking election.
The issue of whether the defendant (INEC) can screen candidates of political parties or not have been laid to rest by the court of Appeal while considering the provisions of section 136(1) and (2) of the Electoral Act, 2002 which is in pari materia with section 147(1) and (2) of the Electoral Act, 2006 in Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91 at 196 ratio 58 where the court had this to say:-
“It is a matter of common knowledge that before candidates representing political parties are allowed to contest they are subjected to rigorous screening by the INEC in line with what is provided for in section 136(2) of the Electoral Act, 2002.”
On the issue of whether or not the defendant can disqualify a candidate, section 32(5) of the Electoral Act, 2006 provides:
“If the court determines that any of the information contained in the affidavit is false, the court shall issue an order disqualifying the candidate from contesting the election”.
Sections 137 and 182 of the 1999 Constitution also contain provisions that ab initio disqualify an intending candidate aspiring to the office of President and Governor respectively. However, none of these provisions in my view empower the defendant (INEC) to issue an order disqualifying a candidate.
However, the defendant under its power to organize, undertake and supervise all elections as provided under section 15(a) of the 3rd Schedule is not expected to close its eyes to a violation of the Constitution and/or the Electoral Act, 2006. It has a duty to ensure that all conditions precedent and requirements stipulated by the Constitution and Electoral Act, 2006 are met by candidates intending to participate in such elections.
It is hereby declared as follows:
(i) Relief I is granted only to the extent that the defendant has no power to disqualify candidates under the provisions of the Constitution of the Federal Republic of Nigeria, 1999, and the Electoral Act, 2006.
(ii) That relief II only seek an interpretation as to the power of a political party to verify or screen its candidates prior to their being sponsored, that is, before their names are being forwarded to the defendant. This question only relates to the domestic act of a political party before the name of candidates are forwarded to the defendant. It is not relevant for the purpose of this case. The question is academic and non-issue that requires no answer. The court has no business in engaging in an academic discourse. The relief is refused.
(iii) Relief III, having held that the defendant can in law screen candidates, relief III cannot be granted. It is refused.
(iv) Relief IV is granted with the following modifications: The power to disqualify any candidate sponsored by any political party including the 1st plaintiff from contesting an election is vested in the courts as provided for in section 32(5) of the Electoral Act, 2006 and in any other legislation that is validly enacted in that behalf.
(v) Relief V cannot be granted as the directive is not shown to be subsisting and also in view of the position taken by this court that the defendant can verify and/or screen candidates. It is accordingly refused.
Relief VI, an order of injunction is refused as the court will not grant an order of injunction over a completed act. See Ajewole v. Adetimo (1996) 2 NWLR (Pt. 431) page 391.
An injunction is not a remedy for an act which has already been carried out.
This is the judgment of this court.”
The two parties were dissatisfied with the decision of the learned trial Judge and being aggrieved, appealed to this court. The defendant who is now appellant filed two notices of appeal; one deals with the interlocutory ruling and the other against the final judgment of the learned trial Judge. The appellant framed three (3) issues from the two notices of appeal it filed. As observed earlier the plaintiffs too filed a notice of appeal containing six (6) grounds of appeal in their cross-appeal.
After a careful consideration of the submissions of the learned counsel for both parties, respectfully I am of the view that the issue calling for determination in this appeal is as follows:-
“Whether appellant/cross-respondent has power and authority to screen and verify the candidates and the documents presented to it. And whether appellant/cross-respondent has power to disqualify exclude or disallow a candidate from contesting an election having regard to the constitutional provisions and relevant law that is, Electoral Act, 2006.”
Learned counsel for appellant/cross-respondent contended that it is the 1999 Constitution that disqualifies the candidates by referring to sections 137 and 182 of the Constitution. Under these provisions of the Constitution varieties of issues were set out which must be complied with by a candidate. It is not the Commission that actually disqualified the candidates it merely enforces the provisions of the Constitution. He gave an example of a non-Nigerian who wishes to contest an election or one who is an under age in respect of the position he is seeking. Can the Commission simply close its eyes and allow matters to go or it must go to court to obtain an order. He referred to section 137(1) and (2) of the Constitution as well as the case of Daggash v. Bulama (2004) 14 NWLR (Pt.892) 144 and made an analogy between indictment and conviction. He expressed the view that indictment relates to inquiry of tribunal set up under the law and that it was after indictment that prosecution and conviction follow.
He then referred to section 32 of the Electoral Act, 2006. He posed a question that in event a candidate told the truth or gave a correct information that may lead to disqualification under the provision of the Constitution, would appellant have to go to court under section 32(4) and (5) of the Electoral Act. He submitted that the appellant should not wait for that to happen. The Commission can give effect to the provisions of the Constitution. He further submitted that sub-sections (4) and (5) of section 32 are novel. They came into play when a proposed candidate told a lie. The wordings of the section are very clear and where the law expressly mention a case it excludes the other. INEC v. PDP (1999) 11 NWLR (Pt. 626) 174; and Sarah v. Kotoye (1992) 9 NWLR (Pt. 264) 156.
Learned senior counsel for plaintiff/cross-appellant, Mr. Rickey Tarfa adopted the issue framed by the appellant subject to some comments to be made in the course of his submissions.
He started by saying that notwithstanding the provisions of sections 137 and 182 of the Constitution, whether it can be questioned that it is only the court of law that can disqualify a candidate to contest an election. He contended that in considering the powers vested in the appellant, it is necessary to examine the provisions of the Constitution and the Electoral Act. He made reference to sections 65, 131, 177, 66(1), 137(1), 107(1) and 182 of the Constitution. These sections deal with disqualification of the candidates. He submitted that it is significant that the name of the appellant was not mentioned in any of the sections empowering it to disqualify any body from contesting the election. The only mention of the appellant is made in section 137(1)(j), that even this section did not say that it is the appellant that can exercise that power of disqualification. That from the provisions of this section it is clear that it is not intended by the law makers to confer authority on the appellant, to disqualify a candidate that presented a forged certificate to it. He refers to the provisions of section 6(6) of the Constitution which he says confer judicial powers only to the court and not to appellant.
Learned senior counsel then referred to paragraph 15 of the Third Schedule in particular paragraph (i) which he contended did not vest power on the appellant to disqualify any candidate from contesting an election. He maintained that the power to disqualify a candidate was conferred on the Court. Having regard to the provisions of section 32 (4) and (5) of the Electoral Act 2006. He reiterated that the power to disqualify a candidate is vested in the court, having regard to Section 32 (4) and (5) of the Act.
The provisions of the constitution to disqualify a candidate are not self executory, other things must follow, like due process which are complex and must not be left in the hands of the appellant. He referred to the example cited by learned senior counsel to the appellant and contended that those are not matters that create disqualification or provide mechanism for disqualifying a candidate.
He refers to Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91, 196 which was decided on the provisions of section 136 of 2002 Electoral Act. He, in addition, made reference to section 21(7) of the Electoral Act, 2002. He referred to section 145(1)(a) of the 2006 Electoral Act.
Section 145(1) provides as follows:-
“An election may be questioned on any of the following grounds, (a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;”
See Ona v. Atenda (2000) 5 NWLR (Pt. 656) 244, 286 – 287; M. F. Kent West Africa Limited v. Martchem Industry Nigeria Limited (2000) 8 NWLR (Pt. 669) 459 at 473; Ojukwu v. Kaine (2000) 15 NWLR (Pt. 691) 516, 523; and Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, 203 – 204. He once more raised the question as to whether only court can disqualify in relation to section 32(4) and (5) of the Electoral Act, 2006. He went on to refer once again to sections 137(1) at 182(1) of the Constitution, and submitted that any disability set out by sections 137(1) and 182(1) can only be determined by a court of law or a tribunal. He further contended that any person in section 32(4) of the Electoral Act includes appellant. He urged that the appeal be dismissed.
In the cross-appeal, cross-appellants submitted that the appellant has no power to screen candidates submitted to it by political parties. That it was the political parties that had exclusive power to screen their candidates. He referred to sections of enactments which’ he had earlier referred to in this appeal. Grounds of disqualification are significant with regard to screening the particulars of the candidates. He submitted that there is no provision enabling appellant to invite candidates for screening. See section 36 of the Electoral Act which confers power of nominating and sponsoring of candidates of a political party. He contended further that the power of the appellant provided for in paragraph 15 of the Third Schedule of the Constitution does not include the power to screen candidates. He asked the court to allow the cross-appeal.
In his reply, learned senior counsel, Mr. Gadzama maintains that the provisions of sections 137 and 182 of the Constitution by necessary implication conferred on the appellant authority to exercise all necessary administrative powers to give effect to the provisions of the Constitution. He urged the court to dismiss the cross-appeal.
At this stage, it is convenient to set out the provisions of the Constitution and the Electoral Act relied upon by the parties. Section 137(1) of the Constitution provides as follows:-
“137 -(1) A person shall not be qualified for election to the office of President if –
(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
(b) he has been elected to such office at any two previous elections; or
(c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
(e) within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the code of conduct; or
(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or
(g) being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or
(h) he is a member of any secret society; or
(i) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government, respectively; or
(j) he has presented a forged certificate to the Independent National Electoral Commission.
Section 182(1) is in pari materia with section 137(1) in relation with the qualification or disqualification of a Governor.
Paragraph 15 of the Third Schedule is pel1inent. It is, therefore, important to recite it immediately hereunder:-
“15. The Commission shall have power to
(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;
(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;
(c) monitor the organisation and operation of the political parties, including their finances;
(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;
(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;
(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;
(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the oath of office prescribed by law;
(h) delegate any of its powers to any Resident Electoral Commissioner; and
(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.”
Finally, section 32 of the Electoral Act was put into contention by the learned senior counsel for both parties. It is recited hereunder as follows:-
“32-(1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.
(2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.
(3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in -the constituency where the candidate intends to contest the election.
(4) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.
(5) If the court determines that any of the information contained in the affidavit is false the court shall issue an order disqualifying the candidate from contesting the election.
(6) A political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine of N500,000.00.”
Submissions of learned senior counsel revolve round these provisions of the Constitution and the Electoral Act set out above. The law on Interpretation of statute is settled that where the words of a statute are clear and unambiguous they should be given their ordinary grammatical meanings, unless it will result in ambiguity or absurdity. See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, 203-204, where the Supreme Court stated that:-
“In this regard, the point must be stressed that it is a corollary to the general rule of literary construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.”
Not only are the words of section 137 of the Constitution clear and unambiguous, it is common ground that it provides for disqualification of a candidate aspiring to the office of the President or Vice President. What is in contention is whether the appellant, the body charged with the power to organise, undertake, and supervise all elections to the office of President, Vice President, etc, as well as Carry out such other functions as may be conferred upon it by an Act of the National Assembly pursuance of paragraph 15 of the Third Schedule can ensure the observance of the provisions of section 137(1) of the Constitution? It is the view of the learned senior counsel for appellant that it could.
There is merit in the submission of the learned senior counsel for appellant since the maker of the Constitution would not make these provisions for the fun of it. I am of the firm view that if the appellant decided to close its eyes to the infraction of the provisions of the Constitution, it would be tantamount to abandoning the heavy responsibility placed on it by the provisions of the Constitution to wit to organise, undertake and supervise the conduct of a credible election.
Apart from this constitutional power it is inherent in section 32, particularly subsections (1) and (2) of the Electoral Act that the appellant has a primary duty to ensure compliance with the provisions of the Constitution. The section had already been quoted in this judgment, but to reinforce my view, it is relevant to recite sub-section
(2) of section 32 of the Electoral Act which states:-
“(2) The list shall be accompanied by Affidavit sworn to by each candidate at the High court of a State, indicating that he has fulfilled the entire constitutional requirement for election into that office.” (italics mine)
The whole case of the respondent/cross-appellant was squarely hinged on section 32(4) and (5) of the Electoral Act, 2006. In my considered view, these two sub-sections deal with an entirely different situation. The two sub-sections when read together, provide an opportunity for any individual, after preview of the personal particulars of a candidate published by the appellant in the constituency where the candidate intends to contest the election can, on reasonable grounds believe that there is false information given by such a candidate to go to the High Court to challenge his candidature. It will be a mere circus show for the Commission to be expected to go to court first to seek a declaration before treating the information supplied to it.
The submission of the learned senior counsel for cross-appellants that screening of candidates is exclusive responsibility of the political parties in view of his reliance on the case of Ajadi v. Ajibola (supra), a Court of Appeal decision which upheld the light of the appellant to screen candidates, seriously, undermine his position.
For the avoidance of any doubt, having regard to the clear provisions of the Constitution and the Electoral Act discussed above, it is my considered view that the appellant has the power and authority not only to screen candidates sent to it by political parties, but to also remove the name of any candidate that failed to meet the criteria set out by the Constitution without having to go to court.
In the circumstances, the appeal is meritorious and is allowed. Consequently, the cross-appeal fails, and is dismissed. The respondents claim fails and is hereby dismissed.
There shall be no order as to costs, each party to bear its or his own costs.
Other Citations: (2007)LCN/2300(CA)
