I.N.E.C. v. A.C.D.
Citation: (2023) 3 NWLR PT. 1870 AT 97.
Parties in Full:
INDEPENDENT NATIONAL ELECTORAL COMMISSION [INEC]
1. ADVANCED CONGRESS of DEMOCRATS [ACD]
2. ADVANCED NIGERIA DEMOCRATIC PARTY [ANDP]
3. ALL BLENDING PARTY [ABP]
4. ALL GRAND ALLIANCE PARTY [AGAP]
5. ALLIANCE OF SOCIAL DEMOCRATS [ASD]
6. CHANGE ADVOCACY PARTY [CAP]
7. DEMOCRATIC PEOPLES CONGRESS [DPC]
8. GREEN PARTY OF NIGERIA [GPN]
9. MASSES MOVEMENT OF NIGERIA [MPN]
10. MEGA PARTY OF NIGERIA [MPN]
11. NEW GENERATION PARTY OF NIGERIA [NGP]
12. NIGERIA FOR DEMOCRACY [NFD]
13. PEOPLES COALITION PARTY [PCP]
14. PROGRESSIVE PEOPLE ALLIANCE [PPA]
15. PEOPLE FOR DEMOCRATIC CHANGE [PDC]
16. YOUNG DEMOCRATIC PARTY [YDP]
17. RE-BUILD NIGERIA PARTY [RBNP]
18. SAVE NIGERIA CONGRESS [SNC]
19. SOCIALIST PARTY OF NIGERIA [SPN]
20. UNITED DEMOCRATIC PARTY [UDP]
21. UNITED PATRIOTS [UP]
22. WE THE PEOPLE E NIGERIA [WTPN]
23. ATTORNEY GENERAL OF THE FEDERATION
Summary of fact:
In 2017, the Constitution of the Federal Republic of Nigeria 1999, by the Fourth Alteration thereto in section 225A (b)(c) empowered the appellant to deregister political parties that failed to meet some provisions stated therein.
Consequently, and in the exercise of the power conferred on it by Section 255A of the 1999 Constitution, on the 6th day of February 2020, the appellant deregistered seventy-four (74) political parties including the 1st to 22nd respondents herein.
By way of an amended Originating Summons, the 1st to 22nd respondents amongst others, approached the Federal High Court Abuja and they respectively submitted four (4) questions to be determined by the court upon which it sought seven (7) declarative and injunctive reliefs as follows:
1. Whether the provisions of S. 225A(b)(i)(ii) and c(i)(ii)(iii) of the Constitution of the Federal Republic of Nigeria, 1999 introduced by the 4th Alteration Act No.9 of 2017 is to be construed disjunctively/alternatively, or are to be construed conjunctively.
2. Whether the 2nd defendant can exercise any power under S. 225A (b) and (c) of the Constitution of the Federal Republic of Nigeria, I999 without conclusive and democratic elections being first held and concluded into all electoral constituencies of the federation.
3. Whether having regard to the lack of authority by the 2nd defendant to
conduct and determine the winners for Chairmanship and Councillorship elections into Local Governments and Wards in the Federation, the 2nd defendant should be allowed to exercise power to deregister political parties for failure to win elections into such seats.
4. Whether given the notorious, widespread, and pervasive irregularities and cancellation of results in many polling units, wards, and local governments in the 2019 Presidential, national assembly, Government, and State Assembly elections, the 2nd defendant ought to be allowed to deregister political parties for failure to win seats when these parties could have won but for the irregularities and cancellation of results which were perpetrated by persons other than their agents.
- The Respondents sought the following reliefs:
1. A declaration that the provisions of section 225A (b)(i)(ii) and c(i)(ii) of the Constitution of the Federal Republic of Nigeria, 1999 introduced by the 4th alteration Act No.9 of 2017 are intended to be construed disjunctively.
2. A declaration that the power conferred on the 2nd defendant by section 225A (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 to deregister political parties could not have been intended to have any retroactive effect and as such elections into all electoral constituencies must first be held before the power of the 2nd defendant under this section can accrue.
3. A declaration that the 2nd defendant cannot exercise power to deregister political parties for failure to win Chairmanship and Councillorship elections as the 2nd defendant is not the body responsible for conducting elections into these positions, more so that the 2nd defendant has no control over the various states electoral bodies responsible for the conduct of these elections.
4. A declaration that having regard to the notorious pervasive irregularities and widespread and cancellation of results in many polling units wards, local governments during the 2019 Presidential, National Assembly, Governorship, and State Assembly elections, the 2nd defendant cannot be allowed to deregister political parties for failure to win seats or certain percentages of the votes cast at the 2019 general election as these political parties could have won but for irregularities and cancellations perpetrated by persons who are not agents of the political parties.
5. An order of injunction restraining the 2nd defendant, from exercising the powers conferred on it by section 225A (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 until conclusive and democratic elections are held into the presidency, all Government, National Assembly, State Assembly, Local Government Chairmanship and Councillorship positions in the Federation, which election must have been held after this section was introduced.
6. An order of injunction restraining the 2nd defendant from exercising the powers to deregister the plaintiffs or any political party for that matter as the 2nd defendant does not have the power to conduct elections into all the positions listed in section 225A (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999.
7. An order of injunction restraining the 2nd defendant from deregistering the plaintiffs or any political party for that matter for failure to win seats or certain percentages of the votes cast at the 2019 general elections as these political parties could have won but for irregularities and cancellations perpetrated by a person who is not agents of the political parties.
On its part, the appellant, which was the 2nd respondent at the trial court, filed a counter-affidavit and a written address in opposition to the amended originating summons.
- The Trial Court’s Decision
The matter was duly heard and in its judgment, the trial court held, inter alia, that the provisions of section 225A (b) and (c) of the 1999 Constitution are to be interpreted disjunctively and that the appellant was empowered by virtue of the said section to de-register the 1st to 22nd respondents for non-compliance with the provisions of the said section.
The court, therefore, dismissed the suit for the failure of the plaintiffs to prove their case.
Dissatisfied with the judgment of the trial court, the 34 plaintiffs at the trial court out of whom the 1st to 22nd respondents herein were part, appealed to the Court of Appeal on eight grounds of appeal from which they raised a sole issue for determination to wit:
Whether or not the trial court was right to hold that the 2nd respondent can validly proceed to exercise its powers under section 225A of the Constitution of the Federal Republic of Nigeria 1999 (as altered) deregisters a political party that fails to satisfy any of the requirements listed in subsections (b) & (c) thereof and that these powers can be exercised even when elections have not been conducted into all the elective offices nationwide.
- Appeal Court’s Decision.
The Court of Appeal allowed the appeal in part, holding that the de-registration of the 1st to 22nd respondents by the 2nd respondent during the pendency of the suit was illegal. It, therefore, set it aside.
Dissatisfied with the decision of the Court of Appeal, the appellant appealed to the Supreme Court.
Held: Unanimously allowing the appeal.
The Supreme Court raised and determined the following issues:
1. On how jurisdiction of appellate court can be invoked
The appellate jurisdiction of the Court of Appeal, as well as the Supreme Court, can only be invoked by filing a valid notice of appeal containing competent grounds of appeal.
The jurisdiction of the appellate courts is circumscribed by the ground(s) of appeal and issue(s) for determination distilled or arising therefrom.
2. On nature, function, and purpose of an appeal
The dispute at the appellate court, by way of rehearing, is an invitation to a higher court to review the decision of the lower court to find out whether, in consideration of the facts placed before it and applicable law, the trial court arrived at the correct decision.
Accordingly, the appellate court has no business, duty, or power to deal with an issue or point on which the trial court did not make a pronouncement.
In the instant case, the 1st to 22nd respondents did not raise the issue of being denied a fair hearing by the appellant in the manner of their deregistration; and also the illegality of their deregistration was not in issues raised in the amended originating summons, or that the appellant did not follow due process of law in their deregistration.
The trial court was not invited to make any pronouncement on those issues, and it made no pronouncement on them in its judgment. The 1st to 22nd respondents did not also predicate their appeal, as appellants at the Court of Appeal, on those issues.
Therefore, the Court of Appeal could not validly raise suo motu issues not contemplated by either party and predicate its decision thereon without allowing the parties to be heard on them; particularly as the issues raised suo motu, and decided, by the Court of Appeal did not touch on the jurisdiction of either the trial court or the Court of Appeal.
That quixotic approach to the administration of justice was akin to the court embarking upon cloistered justice by importing into the dispute inter parties extraneous matters beyond the contemplation of the parties.
The court, like the parties, is bound by the pleadings of the parties before it. None shall exceed the bounds of the matter pleaded and import into the dispute causes or matters not pleaded.
3. On basis of grounds of appeal and issues for determination in an appeal
Issues for determination in an appeal must be derived from the grounds of appeal which must, in turn, be predicated upon the ratio decidendi of the decision appealed against.
4. In effect failure to appeal against the finding of fact of the lower court
In law, any specific decision, finding of fact, or holding in law not appealed subsists and remains binding on the parties.
5. On the purpose of the formulation of issues for determination in an appeal
The main purpose of formulating issues for determination in an appeal is to enable the parties to narrow down the issues in controversy, as disclosed by the ground(s) of appeal, in the interest of accuracy, clarity, and brevity.
6. On principles guiding the formulation of issues for determination
Issues for determination by an appeal court are distilled from the grounds of appeal which are derived from the ratio decidendi of the judgment appealed against. The judgment of the appeal court must therefore be confined to the issues formulated from the grounds of appeal.
The court may adopt the issues formulated by either of the parties which succinctly address the issue for determination, or it may reframe the issue already formulated and argued by the parties.
The essence is to determine the appeal on the issue which best addresses the main grievance of the appellant. However, the court cannot sou motu determine an appeal on an issue not canvassed by the parties and without any input from the parties.
7. On duty on the Court of Appeal to consider and pronounce issues placed before it
By virtue of Section 15 of the Court of Appeal Act, the Court of Appeal is conferred with jurisdiction to deal with all issues in controversy, to avoid a multiplicity of suits.
In the instant appeal, from the notice and grounds of appeal filed by the respondents herein who were appellants at the Court of Appeal, it is seen that in none of those grounds of appeal did the issue of deregistration of the respondents of Appeal, is pendency of the suit show up.
The respondents as appellants at the Court of Appeal did not raise the issue on the ground of appeal, and so the Court of Appeal lacked the jurisdiction to hear and determine the question as it had not been donated by the notice and ground of appeal.
The implication of what the court did is providing an answer to a question not before it.
8. On the power of the Court of Appeal to raise issue suo motu and duty thereon when it does so
By virtue of Order 7Rulee 5 of the Court of Appeal Rules, 2016, the Court of Appeal is not confined to the issues set forth by the appellant, and the court can determine a case outside the grounds of appeal.
However, although, generally the court can do so, that must be after taking the addresses of the parties upon the point so raised outside the issues arising from the grounds of appeal.
When the issue of Appeal intends to rest its decision on any ground not set forth by the appellant, the respondent must be afforded sufficient opportunity to contest that point and unless that is done, the court would have occasioned injustice and a miscarriage of justice on that respondent.
In the instant case, the method adopted by the Court of Appeal was unknown to the law. Any issue not captured in the notice and grounds of appeal and which was not argued before the court cannot be a basis for judgment without the parties having been allowed to address upon it; hence, the Court of Appeal occasioned a grave injustice to the appellant herein.
9. On duty in court to confine itself to issues raised by parties
In the determination of disputes between parties, the court should confine itself to the issues raised by the parties. The court is not competent to, suo motu, make a case for either or both of the parties and then proceed to give judgment in the case so formulated contrary to the case of the parties before it.
10. On duty on court raising issue suo motu to hear parties thereon
The courts have always regarded with disfavour the practice of the Judex raising an issue suo motu, which does not touch on the jurisdiction of the court, and deciding on it without calling on the parties and/or their counsel to address it.
Raising an issue suo motu and deciding it without giving the parties and/or their counsel an opportunity to be heard on it, apart from it being repulsive to the principle of fair hearing, is not the basic function of any court.
The basic principle of fair hearing, particularly for audi alteram partemn, is that the Judge who decides must hear.
Where the Judge decides without hearing, it smacks of it violating its duty at all times to be impartial as it should be under another principle of fair hearing encapsulated in the doctrine of nemo judex in causa sua.
11. On duty on court raising issue suo motu to hear parties thereon
While it is correct that the court has a duty to prevent the subversion of the justice of a case by the foisting of a fait accompli on it by any party, where it raises an issue suo motu, it must afford the parties the opportunity of being heard before basing its decision thereon.
In the instant case, the issue of the deregistration of the 1st – 22nd respondents was raised suo motu by the court, as it did not arise from the sole issue adopted by the court for the resolution of the appeal.
12. On the scope of the doctrine of judicial notice vis-à-vis right to a fair hearing
The applicability of the doctrine of judicial notice does not superintend over the constitutional right to a fair hearing. In as much as the court is enjoined by
the provisions of the Evidence Act to take judicial notice of some acts, the court’s powers to do so must not be in breach of the right to a fair hearing of a party.
In the instant case, the issue of deregistration of the respondents during the pendency of the suit did not exist in litigation but was only raised by the court in the course of proceedings.
13. On the attitude of the Supreme Court to its previous decision and when will depart therefrom
The Supreme Court ordinarily adheres to the principle of judicial precedent (stare decisis) and will hold itself bound by its previous decision. However, where it is satisfied that its previous decision is erroneous or was reached per incuriam, and would amount to injustice to perpetuate the error, by following the such decision, it will overrule such decision or depart from it.
14. On binding of the Court of Appeal of its previous decision and when will it depart therefrom
Under the doctrine of stare decisis the Court of Appeal, as an intermediate appellate court between the court below it and the Supreme Court, is bound by its decisions except in circumstances specified in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All E.R. 293, that is;
(a) the Court of Appeal is entitled to decide which of two conflicting decisions of its own it will follow;
(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; and
(c) is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
15. On principles governing the interpretation of statutory provisions
In line with the trite principle of interpretation or construction of statutory provisions what is not expressly prohibited is impliedly permitted.
In the instant case, both section 9 of the Court of Appeal Act, 2004 and section 247(1) of the 1999 Constitution as amended, merely provide that the Court of Appeal “shall be duly constituted if it consists of not less than three Justices of the Court of Appeal”, there is no express provision to the effect that a 5-man panel shall be the full court of the Court of Appeal.
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.