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Alliance For Democracy (AD) & Ors v. The Independent National Electoral Commission (INEC) (2003) - CA


icon CASE SUMMARY OF:

Alliance For Democracy (AD) & Ors v. The Independent National Electoral Commission (INEC) (2003) - CA

by NSA PaulPipAr
icon AREA OF LAW

- Constitutional Law;
icon TAG(S)

- Election;
- Jurisdiction;
- Supremacy of the Constitution;
- Existing law;
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icon PARTIES

APPELLANT
Alliance For Democracy (AD)

v.

RESPONDENTS
1. The Independent National Electoral Commission (INEC);
2. Attorney-general Of The Federation;
3. All Peoples Party (APP);
4. Peoples Democratic Party (PDP).
icon CITATION

(2003) LPELR-12445(CA);
icon COURT

Court of Appeal
icon LEAD JUDGEMENT DELIVERED BY:

F. F. Tabai, J.C.A.
icon APPEARANCES

* FOR THE APPELLANT
- R. OTARU, ESQ.

* FOR THE RESPONDENT
- OTUNBA K, KALEJAIYE ESQ;
- S. O. IBRAHIM. ESQ. S.L.O.
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icon FACT (as relating to the issues)

This action was filed at the Osogbo Judicial Division of the High Court of Osun State. The reliefs claimed by the Plaintiff/Appellant against the Defendants/Respondents jointly and severally were for -
(a) A declaration that under and by virtue of the provisions of part 1 paragraph 15 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act 2001, the 1st Defendant has the duty to organize, conduct and supervise State Assemblies Election, including Bye-Elections. Arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise and/or update the register of voters for the purpose of any election under the said Constitution.
(b) A declaration that the 1st Defendant is bound by the decision of the meeting held on or about Wednesday April 24th under the Chairmanship of Chief of the Armed Forces of the Federal Republic of Nigeria in which the Chairman and Officers of the 1st Defendant, Chairman of the Thirty-six states of the Federation, Heads of all security Agencies and the speakers of State House of Assemblies of the Thirty-six States of the Federation were present to the effect that no democratic election can be held anywhere in the Federation unless and until the register of voters made in 1998 is revised and that the 1st Defendant shall revise, update the register of voters before any election is held or conducted.
(c) A declaration that the 1st Defendant cannot validly, legally and constitutionally conduct any election in Osun State until the register of voters is revised and all the parties to the election agree to same.
(d) An order of injunction restraining the 1st Defendant either by itself, agents, servants, officers, officials or any person or persons howsoever from organizing, conducting, supervising, ordering or take any step whatsoever to organize, conduct, supervise or order any election whatsoever called into Osun State House of Assembly in respect of Ife Central Local Government Constituency in Osun State or any other Constituency in Osun State until the final determination of the substantive suit.
(e) An Order of Injunction restraining the 1st Defendant either by itself, servants, agents officers, officials, or any person or persons howsoever from arranging, ordering, organizing, supervising or take any step whatsoever to arrange, order, organize or supervise any election into the Osun State House of Assembly in respect of Ife Central Local Government Constituency in Osun State unless and until the Register of voters is revised and/or updated in accordance with the relevant provisions of the enabling Laws or statutes guiding democratic election in Nigeria.
(f) An Order of Injunction restraining the 2nd and 3rd Defendants either by themselves, servants, agents, privies, officers, officials or any person or persons howsoever from sponsoring and/or fielding candidates for the purpose of any elections into the Osun State House of Assembly to fill the vacant seat of Ife Central Constituency of Osun State until the final determination of the substantive suit.

By a Notice of preliminary Objection dated the 8th May 2002 the 1st Defendant/Respondent challenged the jurisdiction of the High Court of Osun State and the competence of the action itself. The main ground of the challenge is the provision of section 251 of the 1999 Constitution. Arguments were taken on the motion. And in a considered ruling on the 27th May 2002 the learned trial judge B.O. Babalola, J. sustained the objection on the ground that the High Court of Osun State lacked jurisdiction to entertain the suit and same was accordingly struck out. The present appeal is against that ruling.
icon ISSUE(S)

1. Whether having regard to the independent National Electoral Commission (Establishment, Etc.) decree No. 17 of 1998 the 1st Respondent (INEC) is an agency of the Federal Government of Nigeria.
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icon HOLDING & RATIO DECIDENDI

[APPEAL: DISMISSED with N5,000 against the Appellant]

1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.

RULING:
i. The relevant provisions of section 6 of the INEC Decree No.17 of 1998 on which the submission of the Appellant is predicated says - "In the discharge of its functions under this Decree, the Commission shall not be subject to the direction or control of any person or authority." Can this be properly construed to have removed the INEC from the list of agencies of the Federal Government over which jurisdiction is reserved exclusively for the Federal High Court under section 251 of the Constitution? I am inclined to answer this poser in the negative for two reasons - Firstly, it is my view that any provision in a statute which purports to remove, limit, widen or otherwise vary the existing jurisdiction of a court must be clear, specific and unequivocal. The tenor of the provision cannot be assumed or implied. It must be such clear provision that does not leave the courts and the parties guessing as to the scope and extent of the jurisdiction. In other words no provisions of a statute can be construed to confer, limit or vary the given decision of a court by implication.

ii. Section 6 of the Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998 does not contain any express provision removing the INEC from the list of agencies or organisation of the Federal Government over which jurisdiction is reserved for the Federal High Court. And the section cannot on the above authorities be construed to have removed or curtailed the exclusive jurisdiction of the Federal High Court by implication.

iii. The second reason is this. The jurisdiction of the Superior Courts is derived from the Constitution. It is the Constitution that provides the clue to any controversy about the jurisdiction of any of our Superior Courts of Record. The consequence is that any provision in a statute which purports to confer on a Superior Court jurisdiction contrary to that provided by the Constitution is null and void to the effect of its inconsistency.
icon REFERENCED

Section 6 of the Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998;
icon SOME PROVISION(S)

Section 6 of the INEC Decree No.17 of 1998 on which the submission of the Appellant is predicated says: "In the discharge of its functions under this Decree, the Commission shall not be subject to the direction or control of any person or authority."
icon RELEVANT CASE(S)


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icon CASE(S) RELATED


icon NOTABLE DICTA

* PROCEDURAL
It is settled principle that the Court of Appeal is bound by its own previous decisions except in any of the following circumstances- (a) where there are two conflicting decisions of the Court, it is entitled to decide which of them it would follow; or (b) it will refuse to follow its own decision which though not expressly overruled, cannot in its opinion stand with a decision of the Supreme Court; or (c) where its previous decision was given per incuriam, it is not bound to follow it. - Tabai, JCA. Alliance v. INEC (2003)

* SUBSTANTIVE
The Independent National Electoral Commission (Establishment Etc.) Decree No. 17 of 1998 was, as at the 29/5/99 an existing laws within the meaning of the provisions of section 315 of the Constitution and shall only have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution (underlining mine), The Decree is deemed to be an act of the National Assembly and any provision therein including section 6 which purports to remove, curtail or otherwise vary the jurisdiction of the Federal High Court under section 251 of the Constitution is null and void to the extent of its inconsistency. Thus even if section 6 of the INEC Decree No. 17 of 1998 bears the meaning ascribed to it by learned counsel for the Appellant (which I do not concede) it is null and void. - Tabai, JCA. Alliance v. INEC (2003)

A court is competent where the subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. Where issue of jurisdiction is based on the constitution or any statute a court cannot confer jurisdiction on itself by misconstruing a statute. Jurisdiction of court is conferred by statute. - Oyelola Adekeye, JCA. Alliance v. INEC (2003)

Whatever the case may be the provisions of the Constitution ought to be interpreted liberally so as not to defeat the obvious ends the Constitution was designed to serve. - Oyelola Adekeye, JCA. Alliance v. INEC (2003)


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