ACD & ORS v. A.G OF THE FEDERATION & ANOR (2020)

ACD & ORS v. A.G OF THE FEDERATION & ANOR

(2020)LCN/14560(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, August 10, 2020

CA/ABJ/CV/507/2020

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Between

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 PEOPLE’S CONGRESS (DPC) 8. GREEN PARTY OF NIGERIA (GPN) 9. MASSES MOVEMENT OF NIGERIA (MMN) 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 PEOPLES ALLIANCE (PPA) 15. PEOPLE FOR DECOMACRATIC 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 DEMOCARTIC PARTY (UDP) 21. UNITED PATRIOTS (UP) 22. WE THE PEOPLE NIGERIA (WTPN) APPELANT(S)

And

ATTORNEY GENERAL OF THE FEDERATION 2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

RATIO

THE PRINCIPLE THAT HE WHO ASSERTS MUST PROVE

The law is that he who asserts must prove.
Section 131(1) of Evidence Act states as follows:
“Whosever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he accepts shall prove that those facts exists.”
Section 132 of Evidence Act state:
“The burden of proof is on him who asserts and not on him who denies.”
In the case of NITEL LTD. vs. OKEKE (2017) 9 NWLR (pt. 1571) PAGE 439, the Court held thus:
“That the burden of proof in a civil proceeding lies on the person who will fail if no evidence at all is given”
The Plaintiffs are to succeed on the strength of their case and not on the weakness of Respondents’ case. See ACTION CONGRESS OF NIGERIA (ACN) vs. NYAKO (2015) 18 NWLR (pt. 1491) page 352 per Peter Odili, JSC. PER DONGBAN-MENSEM, J.C.A.

WHETHER OR NOT A STATUTORY BODY EXERCISING A STATUTORY POWER TO DIVEST A PERSON’S VESTED RIGHT MUST SHOW THAT ITS EXERCISE IS IN ACCORDANCE WITH THE LAW

It is the principle of law that a statutory body exercising a statutory power to divest a person’s vested right has the legal duty to show that its exercise or intended exercise of that power is in accordance with law. The Court has the duty to protect vested rights of citizens. I place reliance on the decision in CHIEF JOSEPH OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 SCNJ, 266 @ 278 thus;
“Courts have a duty to protect vested rights, as otherwise lawlessness will reign. So, they have always taken the view that any attempt by a competent authority to take away a citizen’s vested rights must be done in strict compliance with the law and any laid down procedure therefore. See on this Ojo. V. Governor of Oyo State (1989) 1 NWLR (Pt. 5) 1; also Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572. As Lord Macnaghten put it in the case of Mayor e.t.c. of Westminster v. London & North Western Railway Coy. (1905) AC. 426, at 430: “…a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.” See also Hart v. Military Governor of Rivers State & Ors, (1976) 2 FNLR 215 at {1992) 2 226-7.” Per NNAEMEKA-AGU, J.S.C. PER DONGBAN-MENSEM, J.C.A.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/CV/507/2020 was commenced on 30th June, 2020 when the Appellants filed a notice of appeal against the judgement of the Federal High Court delivered on 11th June, 2020 in suit No. FHC/ABJ/CS/444/2019 coram A. I. Chikere J. The Notice of Appeal filed on filed 30th June, 2020 contains 8 grounds of appeal.

The Record of Appeal was transmitted to this Court on 07/07/2020. The parties identified and adopted their respective briefs as follows; appellants’ brief filed on 20th July, 2020, 1st respondent’s brief filed on 03/08/2020, 2nd respondent’s brief filed on 03/08/2020.

The 2nd respondent raised and argued a Preliminary Objection to the competence of the Appellants’ brief on the ground that the Appellants unilaterally altered the parties as reflected on the Notice of Appeal upon which the said brief of argument is predicated. The Appellant replied to the Preliminary Objection in pages 2 to 6 of the Appellants reply brief.

I will determine the merit of this Preliminary Objection before I delve into the substantive

appeal.

Learned Counsel for the 2nd respondent submits that the Notice of Appeal has (14) parties as Respondents, but the Appellants’ brief of argument has only two (2) Respondents. That the Appellants cannot unilaterally change or alter the parties as reflected in the said Notice of Appeal and since the Appellants did not seek and obtain leave of the Court for the alteration of the names of the parties in their brief of argument, ipso facto there is no competent brief of argument upon which the Appellants’ appeal can be anchored. The 2nd Respondent urged the Court to strike out the brief of argument for being incompetent and consequently dismiss the appeal pursuant to Order 19, Rule 10 of the Court of Appeal Rules, 2016.

Learned Silk for the Appellants responded that the crux of the 2nd Respondent’s challenge to the jurisdiction of this Court to entertain this appeal is that the Appellants did not include the 1st – 12th Respondents as listed in the Notice of Appeal filed 30th June, 2020 as Respondents in the Appellants’ brief of argument filed, that the Appellants discontinued this appeal as it concerns the 1st –

12th Respondents listed in the Notice of Appeal filed on the 30th June, 2020, that to set the record straight, the 2nd Respondent is not contending that the Appellants unilaterally changed the parties at the trial Court in the Notice of Appeal which the Appellants’ brief of argument is predicated on. The 2nd Respondent could not have so contended because a perusal of the Notice of Appeal filed on the 30th June, 2020 and the Originating Summons filed before the trial Court would reveal that the said Notice of Appeal contains all the parties that took part at the proceedings at the trial Court. (See pages 3 – 22 of the Record of Appeal). Rather, the 2nd Respondent’s contention is that the Appellants unilaterally altered the parties in the suit leading up to the appeal by refusing /failing to include the 1st – 12th Respondents as listed on the Notice of Appeal filed 30th June, 2020 as Respondents in the Appellants’ brief of argument filed on the 20th July, 2020. The Appellants’ submits that the 2nd Respondent’s argument does not seem to take into consideration the fact that the Appellants had earlier filed a Notice of

Discontinuance on the 8th July, 2020 via which it discontinued this appeal as it concerns the 1st – 12th Respondents as listed on the Notice of Appeal filed 30th June, 2020. Further submits that it is a principle of law that once a Notice of Discontinuance is filed at the Registry, it brings to an end the appeal against the Respondents or any of the Respondents against whom the appeal has been discontinued. That the present appeal ceased to exist as it relates to the 1st – 12th Respondents, the moment the Notice of Discontinuance was field on the 8th July, 2020 and there is no reason for the Appellants to include the said 1st – 12th Respondents as Respondents in the Appellants’ brief of argument filed on the 20th July, 2020.

The learned Silk states that in support of its misconceived contention, the 2nd Respondent relied on the Supreme Court’s decision in the case ofRE: APEH (2017) 11 NWLR (PT. 1576) 252 and PPA V. INEC (2012) 13 NWLR (PT. 1317) 2015. That upon an analysis of the said decisions, it would become apparent to the Court that the said decisions do not support the contention of the 2nd Respondent as the decisions states

that parties cannot in their Notice of Appeal unilaterally alter the parties on appeal from the parties before the trial Court. That since it is not the 2nd Respondent’s contention that the Appellants in their Notice of Appeal unilaterally altered the parties on appeal from the parties before the trial Court, the Appellants humbly submit that the said decisions of the Apex Court are not applicable to the 2nd Respondents’ Preliminary Objection. Furthermore, that the Supreme Court in RE: APEH (SUPRA) and PPA V. INEC (SUPRA) did not hold that an Appellant having discontinued an appeal against some of the Respondents is duty-bound to include the name of the said Respondents in its brief of argument. That the Supreme Court in the said cases was interpreting the provision of Order 2, Rule 8 of the Supreme Court Rules, 1985, which states that processes filed at the Apex Court including Brief of Argument must reflect the same title as that which are contained at the trial Court. An analysis of the provisions of the rules of this Honourable Court would reveal that there is no provision like the said Order 2, Rule 8 of the said rule of the Apex Court and

the Apex Court have stated times without number that counsel ought not to cite cases that have no similarities with the peculiar facts and circumstances of their case as the decisions in RE: APEH (SUPRA) and PPA V. INEC (SUPRA) relied upon by the 2nd Respondent bear no factual relation to the contention of the 2nd Respondent. The Learned Silk urged the Court to decline the 2nd Respondent’s invitation to rely on the said decisions in support of its objection.

It is not in dispute that on 8/07/2020 the Appellants filed a notice discontinuing this appeal against the 1st to 12th respondents in the Notice of Appeal, leaving the 13th and 14th Respondents the only Respondents to this appeal. The appeal having been discontinued against the 1st to 12th Respondents, the Appellants in their brief filed on 20/07/2020 did not include them as Respondents to this appeal, as indeed they had ceased to be so.
The best practice is for the Applicant to apply to this Court for an order striking out the names of the 1st to 12th Respondents as Respondents to this appeal because of the discontinuance or withdrawal of the appeal against them. The procedure adopted by

the Appellants in filing their brief without listing them as Respondents to the appeal has not been shown to have misled or caused injustice to any party.
Having discontinued the appeal against the 1st to 12th Respondents, they were no longer Respondents to the appeal and therefore there was no need to still list them as Respondents to the appeal in the Appellant’s brief and other processes filed after the said discontinuance. The 2nd Respondent has not shown any part of the Court of Appeal Rules, 2011 or any law that the Appellants violated by adopting this procedure.
As conceded by all parties, the appeal was properly constituted as to parties in the notice of appeal when it was commenced on 30/06/2020. Therefore, changes in the constitution of the parties in the course of the appeal as a result of the discontinuance or withdrawal of the appeal against some Respondents cannot affect the competence of the appeal that was properly constituted as to parties when it was commenced.
I agree with the submission of Silk for the Appellants that the decision of the Supreme Court in Re: Apeh (supra) relied on the 2nd Respondent is inapplicable here

because the relevant facts of this case are different from the facts of Re: Apeh.
In this case the appeal was properly constituted as to parties when it was filed while in Re: Apeh, the appeal was not properly constituted as to parties when it was filed. The parties listed in the notice of appeal were different from the parties in the proceedings from which the appeal arose. Secondly, the provisions in Order 2 Rule 8 of the Supreme Court Rules 1985 that was considered in Apeh’s case and formed the basis of the decision are not contained in the Court of Appeal Rules 2016 and therefore cannot regulate appeals in this Court.

For the above reasons, I find that the 2nd Respondent’s Preliminary Objection lacks merit and it is hereby dismissed.

Having disposed of the 2nd Respondent’s Preliminary Objection, I shall now proceed to determine the merit of this appeal.

The Appellants raised one issue for determination to wit;
“Whether or not the lower Court was right to hold that the 2nd respondent can validly proceed to exercise its power under Section 225A of the Constitution of the Federal Republic of Nigeria 1999

(as amended) to deregister a political party that fails to satisfy any of the requirements listed in subsections (b) and (c) thereof and that this power can be exercised even when elections have not been conducted into all the elective offices nationwide.“

The 1st Respondent adopted the lone issue raised for determination by the Appellants.

The 2nd Respondent also raised one issue for determination to wit;
“Whether the trial Court correctly construed the provisions of Section 225A, (b) and (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) disjunctively and held that the 2nd respondent has powers to de-register the Appellants for non-compliance with the said provisions AND whether the Court correctly held that the Appellants failed to prove their case to be entitled to the reliefs sought.”

The issues raised for determination in the respective briefs are similar. I will determine this appeal based on the issue for determination framed in the 2nd Respondent as it defines more clearly the issue to be determined in this appeal having regard to the judgment of the learned trial Court, and the grounds of appeal.

I have carefully read and considered the arguments of all parties in their respective briefs on this issue.

I crave indulgence to reproduce the part of the judgment of the learned trial Court complained against thus;
“It is crystal clear from paragraph 36 of the Plaintiffs’ Affidavit that Plaintiffs have participated in various election upon the coming into effect of the Section 225A (b) and (c) of 1999 Constitution of the Federal Republic of Nigeria (as amended).
However, the Plaintiffs refused, neglected and failed to state what seats they won in the said elections. The Plaintiffs also did not attach ‘Certificate of Returns’ from 2nd Defendant to show the Court the seats they won. The Plaintiffs failed to place sufficient material facts for the exercise of the Court’s discretion in their favour. This Court cannot go on a voyage of discovery for Plaintiffs or manufacture evidence to advance the case of the Plaintiffs.
In the case of UDEGBUNAM vs. FEDERAL CAPITAL DEVELOPMENT AUTHORITY, the Apex Court held:
“It was not part of the duty of the learned trial Judge to go on voluntary voyage

of his own aimed at producing evidence for the Plaintiff.
It was clearly a matter that should have been brought out in Court at the trial of the case.”
The law is that he who asserts must prove.
Section 131(1) of Evidence Act states as follows:
“Whosever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he accepts shall prove that those facts exists.”
Section 132 of Evidence Act state:
“The burden of proof is on him who asserts and not on him who denies.”
In the case of NITEL LTD. vs. OKEKE (2017) 9 NWLR (pt. 1571) PAGE 439, the Court held thus:
“That the burden of proof in a civil proceeding lies on the person who will fail if no evidence at all is given”
The Plaintiffs are to succeed on the strength of their case and not on the weakness of Respondents’ case. See ACTION CONGRESS OF NIGERIA (ACN) vs. NYAKO (2015) 18 NWLR (pt. 1491) page 352 per Peter Odili, JSC.
The Plaintiffs also alleged in paragraph 37 of Affidavit that Governorship Election have not been held in Bayelsa, Kogi, Ondo, Edo and Anambra.

That elections have not been held in almost all the 774 Local Government Areas and 8,809 Electoral Wards in the country.
It is common knowledge that elections held in Bayelsa, Kogi and all over Nigeria and that parties are at the tribunal contesting the outcome of those elections.
The Plaintiffs have not shown that they won at least 25% of votes cast in the said election in one State of the Federation, in the Presidential election or one Local Government Area of a State in the Governorship election.
It is clear that the provisions of the Constitution especially Section 225A, (b) and (c) cannot be dependent on purported conduct of all local government or Area Council Elections, as presently those seats are occupied.
Also Plaintiffs failed to show to this Court time table for the purported elections. This Court cannot speculate as Courts deals with hard facts.
In the case of AGHARUKA vs. FIRST BANK OF NIG. LTD. & 2 ORS. (2010) 3 NWLR (pt. 1182) page 465 @ 482, the Court of Appeal held:
“The Court of law can therefore not be asked to speculate on possibilities, which are wholly unsupported by evidence.”

The Plaintiffs who assert that elections have not held in the States mentioned ought to have supported same by exhibiting the time table of the election they are participating, the dates the elections will hold, etc. Mere allegation/assertion that elections did not hold is not sufficient as the Court cannot embark on speculation. Courts deal with hard facts placed before it.
Paragraphs 39 – 41 of the Plaintiffs’ Affidavit does not fall within the ambit of the jurisdiction of this Court.
In conclusion, I hold as follows:
(1) That provision of Section 225A, (b) and (c) in the 1999 Constitution of Federal Republic of Nigeria (as amended) Fourth Alteration Act No. 7 of 2017 is to be interpreted disjunctively.
(2) That the 2nd Defendant has powers under the said Section 225A, (b) and (c) to de-register the Plaintiffs for noncompliance with the provisions of the said Section.
(3) That reliefs 4 and 7 are not within the jurisdiction of this Court to entertain/or grant.
(4) That since the coming into effect of Section 225A, (b) and (c) elections have been held throughout Nigeria. Plaintiffs did not win any seat, if they did they

would have shown material facts to that effect i.e. exhibiting their ‘Certificate of Return’.
(5) Finally, it is the considered view of this Court that Plaintiffs failed to prove their case.”

This decision of the learned trial Court is based on its view that the questions raised for its determination and the nature of the fourth relief sought by the Appellants could not be determined without proof of the alleged facts, its views that the legal burden is on the Appellants as Plaintiffs to show that the situations prescribed in Section 225A of the 1999 Constitution do not exist to justify the 2nd Respondent exercising its power to de-register them as Political Parties and its disregard of the factual issues that the admitted affidavit evidence threw up.

The questions raised for determination in the originating summons are;
“(i) Whether the provisions of Section 225A b(i), b(ii), c(i), c(ii) and c(iii) of the Constitution of the Federal Republic of Nigeria 1999 introduced by the 4th Alternation Act No. 9 of 2017 are to be construed disjunctively/alternatively or whether they are to be construed conjunctively.

(ii) Whether the 2nd Defendant can exercise any power under section 225A (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 without conclusive and democratic elections being first held and concluded into all electoral constituencies of the federation.
(iii) Whether having regard to the lack of authority by the 2nd Defendant to conduct and determine the winners for Chairmanship and Councillorship election into Local Government 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.
(iv) 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, Governorship 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 cancellations of results which were perpetrated by persons other than their agents.”

The reliefs claimed in the originating summons are;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“1. A DECLARATION that the provisions of Section 225A b(i), b(ii), c(i), c(ii) and c(iii) of the Constitution of the Federal Republic of Nigeria 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 in to 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, widespread and pervasive irregularities and cancellation of results in many polling

units, wards, local governments during the 2019 Presidential, National Assembly, Governorship and Sate 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 Governorship, National Assembly, State Assembly, Local Government Chairmanship and Councillorship positions in the Federation, which elections must have been held after this section was introduced.
6. AN ORDER OF INJUCTION 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 INJUCTION 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 vote cast at the 2019 general election as these political parties could have won but for irregularities and cancelations perpetrated by persons who are not agents of the political parties.”

It is obvious that the questions raised for determination in the amended Originating Summons were for the interpretation of Section 225A of the 1999 Constitution and did not require proof of any alleged facts for their determination. It is clear from the express provisions of Section 225A of the 1999 Constitution that it does not require all democratic elections in all electoral constituencies to be concluded before the 2nd Respondent can exercise its power under Section 225A of the 1999 Constitution. There is nothing in that provision stating that the 2nd Respondent cannot exercise its power to de-register a Political Party for failure to win one Ward in a Chairmanship or Councillorship election, if it did

not conduct the Chairmanship or Councillorship election. Furthermore, there is nothing in Section 225A of the 1999 Constitution that states that where there are widespread irregularities or malpractices in Presidential, Governorship, National Assembly and State Houses of Assembly elections, the 2nd Respondent cannot exercise its power to deregister a Political Party for failure to win seats or prescribed minimum percentage of votes in elections.

Having determined the first question that the provisions of Section 225A of the 1999 Constitution are to be construed disjunctively, the learned trial Court ought to have granted the first relief that claimed for a declaration that the said Section is intended to be construed disjunctively. The learned trial Court’s decision refusing to grant that relief is wrong.

The obvious and necessary implication of the decision of the learned trial Court that elections have been held throughout Nigeria since the commencement of Section 225A of the 1999 Constitution and that the Appellants did not win any seat, if they did they would have shown material facts to that effect i.e. exhibiting their certificate of

return, is that the Political Party has the legal burden to show why it should not be de-registered by the 2nd Respondent or that its de-registered is wrong. The decision justifies the de-registration of the Appellants on 06/02/2020 during the pendence of the suit and the motion for interlocutory injunction to restrain their de-registration by the 2nd Respondent, after the said motion had been heard and adjourned for Ruling and eleven days before the Ruling was delivered on 17-2-2020 granting the order restraining their de-registration pending the determination of the suit.

The said decision of the learned trial Court disregards the undisputed and established facts that the suit leading to this appeal was filed in the trial Court by the Appellants to stop the 2nd Respondent from de-registering the Appellants as Political Parties, that as at 18/04/2019 when the suit leading to this appeal was commenced at the trial Court, the Appellants were registered Political Parties, that they were each respectively registered by the 2nd Respondent as such Political Parties at separate times between 2002 and 2009. That while the suit at the trial Court was pending and

a motion on notice therein applying for an interlocutory injunction restraining the 2nd Respondent from de-registering the Claimants pending the determination of the suit, the 2nd Respondent on 6/02/2020 announced the de-registration of the Appellants as Political Parties, that the 2nd Respondent did not inform the Appellant of their breach of any of the conditions for their registration nor of their failure to meet any of the requirements or conditions prescribed in Section 225A of the 1999 Constitution before they were de-registered by the 2nd Respondent.

It is worthy of emphasis that the further affidavit in support of the amended Originating Summons deposed in paragraphs 4, 5, 6, 22 and 23 thusly-
“4. The Plaintiffs filed the amended originating summons and motion for an order of interlocutory injunction restraining the 2nd Defendant from deregistering the plaintiffs pending the determination of the suit on 30/10/2019 and served the defendant on 31/10/2019.
5. The 2nd defendant on the 06/02/2020 quite aware of the pending ruling slated for 17/02/2020, announced the deregistration of the plaintiff save the 9th and 26th plaintiffs.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the 14/02/2020, the plaintiffs filed a motion for an order of mandatory injunction directing the 2nd defendant to forthwith restore the plaintiffs to their original status and served the defendants same day.
22. The 2nd defendant never informed the Plaintiffs of their breach of any of the conditions for their registration nor any breach of any requirements of Section 225A nor heard them before deregistering them.
23. The 2nd defendant never gave the plaintiffs the opportunity to be heard/say anything in their defence before deregistering them.“

The counter affidavit of the 2nd Respondent does not contain any deposition of facts that contradict the above reproduced depositions and the 2nd Respondent did not file any further counter affidavit denying the said depositions. By not contradicting or denying the above depositions in the Appellants’ further affidavits, the Respondents admitted the facts therein as correct based on the principle of law that facts deposed to which are not controverted are deemed admitted. See the decision in the case ofHILLARY FARMS LTD & ORS V. M/V MAHTRA & ORS (2007) LPELR – 1365 (SC)

where the Apex Court stated thus;
“…unchallenged or uncontroverted fact or facts, need no further proof more so, if the said fact or facts pleaded, are given in evidence. See Phoenix Motors Ltd. v. M Ojewumi & 2 Ors. (1992) 6 NWLR (Pt.248) 501 at 508 CA; Uredi v. Dada (1988) 1 NWLR (Pt.69) 237 at 246; (1988) 2 SCNJ. 128; Egbunike v. ACB Ltd. (1995) 2 NWLR (Pt.375) 34 at 53; (1995) 2 SCNJ 58” Per OGBUAGU, J.S.C.
Similarly, in the case ofINEGBEDION V. SELO-OJEMEN & ANOR (2013) LPELR – 19769 (SC), the Apex Court held thus;
“It is trite law that any unchallenged and uncontradicted fact in an affidavit remains undisputed and is deemed admitted by the adversary and the Court will so hold. However, it is also the law that any such unchallenged and uncontradicted facts which are deemed admitted in the affidavit must be capable of proving and supporting the applicant relying on such facts. In other words, it has been held that the affidavit evidence which is said to be unchallenged must necessarily be cogent and strong enough to sustain the case of the applicant. See; Ogoejeofo V. Ogoejeofo (2006) 1 SCM 113, Alagbe V. Abimbola

(1978) 2 SC 39 at 40, Egbuna V. Egbuna (1989) 2 NWLR (Pt. 106) 773 at 777.” Per ARIWOOLA, J.S.C.

The 2nd Respondent having admitted that the Appellants were registered Political Parties, had the legal burden to justify its intended de-registration or de-registration of each of the Appellants as Political Parties. The Party who asserts the positive has the duty to establish the fact. I call in aid the decision of the Apex Court in JIMOH V. HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR – 46329 thus;
“…Both the applicant and the Court are left in the dark to fish out the uncertified documents in the 535 proposed Records of Appeal. Certainly, neither the Court nor the Applicant, the adversary of the objector, are expected to discharge the burden of proving the objector’s assertion. This burden rests squarely on Mr. Anachebe, SAN and his client by dint of Section 131 of the Evidence Act. He who asserts a fact must prove that the fact he asserts exists. Otherwise, he shall not be entitled to the verdict or judgment of the Court.” Per EKO, J.S.C.
It is the principle of law that a

statutory body exercising a statutory power to divest a person’s vested right has the legal duty to show that its exercise or intended exercise of that power is in accordance with law. The Court has the duty to protect vested rights of citizens. I place reliance on the decision in CHIEF JOSEPH OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 SCNJ, 266 @ 278 thus;
“Courts have a duty to protect vested rights, as otherwise lawlessness will reign. So, they have always taken the view that any attempt by a competent authority to take away a citizen’s vested rights must be done in strict compliance with the law and any laid down procedure therefore. See on this Ojo. V. Governor of Oyo State (1989) 1 NWLR (Pt. 5) 1; also Wilson v. Attorney-General of Bendel State (1985) 1 NWLR (Pt. 4) 572. As Lord Macnaghten put it in the case of Mayor e.t.c. of Westminster v. London & North Western Railway Coy. (1905) AC. 426, at 430: “…a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it

must act reasonably.” See also Hart v. Military Governor of Rivers State & Ors, (1976) 2 FNLR 215 at {1992) 2 226-7.” Per NNAEMEKA-AGU, J.S.C.
The law has never placed any primary obligation on the person whose right is being divested, to show why his right should not be divested to show that the exercise of the power is contrary to law. Once a Plaintiff has shown that he has a vested right and that a statutory has taken away that right in exercise of a statutory power, he has no duty to show why his right should not be divested. The burden automatically shifts to the statutory authority to justify the exercise of its statutory power. If it fails to discharge that burden, then the said exercise of statutory power must be declared invalid and set aside.
The blanket de-registration of Political Parties by an announcement without stating the reason for the de-registration nor the service on each affected Political Party of such reasons is ultra-vires the powers of the 2nd Respondent. Such an arbitrary exercise of powers cannot enjoy the presumption of regularity by virtue of Section 225A of the 1999 Constitution which clearly

prescribes the instances when the power can be exercised.
Section 168(1) of the Evidence Act, 2011 which donates the presumption of regularity is unequivocal in its provisions as to the nature of the exercise of the power which can enjoy the presumption of regularity. For the ease of reference, Section 168 (1) provides thus:
“When any judicial or official or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisite for its validity were complied with.”
Substantial regularity is the required standard not arbitrary declaration.
The decision of this Court in N.U.P V. INEC is not binding on this panel because the issue are different. The precedent case was taken out after the Political Party had been de-registered, whereas in the instant case, the de-registration was done during the pendency of a suit challenging the attempt to de-register.
Therefore, the 2nd Respondent has the legal burden to show that any of the condition prescribed in Section 225A of the 1999 Constitution for the de-registration of a Political Party has occurred and exists in respect of a party and the

de-registration or intended de-registration of the political party is in compliance with Section 225A of the 1999 Constitution.
The 2nd Respondent has not shown that the said de-registration has been done in substantial compliance with Section 225A of the 1999 Constitution. To comply with Section 225A of the 1999 Constitution in any given case, the 2nd Respondent must notify in writing, the Political Party concerned the decision to de-register it and the reason. No discretion is reposed in any “body” to divest another of its constitutional right.
The question of whether the regularity of the de-registration could be presumed was not considered in the present case and the need for Independent National Electoral Commission (INEC) to prove that it complied with Section 225A of the 1999 Constitution in deregistering the Political Party was not considered.
The 2nd Respondent showed utmost contempt and disregard for the due process of law and the Court when it proceeded to de-register the Appellants as Political Parties during the pendence of the suit seeking to stop their de-registration by it and after the trial Court had adjourned for

Ruling on the motion on notice applying for an order of injunction restraining their de-registration. It is obvious that the de-registration during the pendency of the suit was meant to defeat the suit and foist a fait accompli on the Appellants and the Court. It is curious that the trial Court remained silent in the face of such attack on the authority of the Court. Every Court has the inherent duty to protect its authority and its processes from being trampled upon and castrated by all persons, particularly parties before it. A Party must not foist a fait acompli on a Court. I am fortified by the decision in BFI GROUP CORPORATION V.B.P.E. (2012) LPELR – 9339 (SC) thus;
“It is being touted that the respondent has taken steps to foist a fait accompli on the Court. The respondent must be made to appreciate the purport of the doctrine of lis pendens which is aimed at preserving the subject matter of litigation, Any extraneous body including Russal which buys the subject of litigation does so at its own risk. See: Vaswani Trading Co. v. Savalakh & Co. (1972) NSCC 692; Ogundiani v. Araba (1978) 6-7 SC 55 at 74.” Per FABIYI, J.S.C.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Now that the 2nd Respondent, has chosen to ridicule and tried to defeat the due process of the law and the Court by its de-registration of the Appellants during the pendency of the very suit seeking to stop the same de-registration, should such obvious illegality be allowed to stand for the reason that no relief was claimed in respect of it? Certainly not. To do so would amount to the abdication of the sacred duty of the Court to protect its processes from being defeated by such action. No relief would have been claimed for concerning the action because it had not taken place when the suit was filed and an interlocutory injunction had been sought for and was yet to be granted when it took place. Since the action in question was taken by a party to the suit before the Court concerning the subject matter of the suit, the Court can declare it invalid to protect the due process of law and justice as it is the duty of Court to preserve the res. See DINGYADI & ANOR V. INEC & ORS (2010) LPELR – 40142 (SC) where the Apex Court held thus;
“A Court has a duty to preserve the subject-matter Res of a litigation before it. Kigo v. Holman Bros

(1980) 5-7 SC pg. 60. Ojukwu v. Military Governor of Lagos State (1985) 2 NWLR pt.10 pg. 806. Ivory Merchant Bank Ltd. v. Partnership Investment Ltd. (1996) 5 NWLR pt. 448 pg. 363” Per ADEKEYE, J.S.C.
This is the principle underlying the doctrine of lis pendis. It would defeat the ends of justice to put the Appellants through the expense of having to commence another suit to challenge an action taken to destroy the res in a pending suit. Equity would not permit a Court to refuse to do anything and watch helplessly the legitimate process of a litigant before it become frustrated by the lawless affront on the authority of the Court by the adverse party.
The undue judicial restraint by the learned trial Court in the face of this lawless affront has left a constitutional violation in the face of its proceedings to remain. A constitutional violation, particularly by public or statutory authority should not be allowed to survive even a second for any reason.
Just like an issue of lack of jurisdiction, a constitutional violation that has arisen in a proceeding before a Court in any manner must be considered and dealt with by the Court as part

of its determination of the case. The Court cannot be restrained by the rules of pleadings and the limits of the reliefs claimed from determining such issue.
The Respondents’ Counsel in his submissions stated that the Court is bound by its earlier unreported decision delivered on the 29th Day of July 2020 in the Abuja Division by Hon. Justice M.B. Idris, JCA in the case of NATIONAL UNITY PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (APPEAL NO. CA/A/CV/426/2020), affirming the decision of the learned trial Court that the de-registration of the Political Parties was lawful.
The Appellants’ Counsel in challenging the above submission stated that the Court is not bound by that decision as this is a 5-Man Panel and a full Court which can therefore overturn the decision relied upon by the Respondents because it was delivered by a 3-Man Panel. The learned Silk forwarded an additional list of authorities to support this position. There is need to reproduce the decision of the Court in the cases cited by the Appellants. In the case of BOGORO LOCAL GOVERNMENT COUNCIL V. JAMES KYAUTA & ORS (2017) LPELR-43296 (CA) @ PAGES 25-26 which is on

unlawful termination of employment, the Court per Abiru, J.C.A. held thus:
“Now, the Court of Appeal sits in two panels, a panel of three justices, used for its regular sittings and a panel of five justices, usually referred as the sitting of the Full Court. The sitting of the Full Court of Appeal is equivalent to what is referred to as “en banc” sitting of the appellate Court in other jurisdictions. The sitting of the Full Court of the Court of Appeal takes place where the Court is being asked to depart, or may decide to depart, from a previous decision, in cases of high constitutional importance or great public importance, or in cases where conflicts in the decisions of its regular panels have to be reconciled. A decision rendered by the Full Court of the Court of Appeal is regarded as the decision of the entire justices of the Court, and not just the decision of the five-man panel that sat on the matter. Under the doctrine of stare decisis, only a sitting of the Full Court of the Court of Appeal or a panel of the Supreme Court can overrule a prior decision of the Court of Appeal; in other words, one panel of the Court of Appeal cannot

overrule another panel. A decision of the Full Court of the Court of Appeal is superior to, and overrides the decision of a regular panel of the Court” (Emphasis supplied).
This decision was followed in the case of FEDERAL REPUBLIC OF NIGERIA V. ALH. ISA SADIQ ACHIDA & ANOR (2018) LPELR 46065 (CA) as cited by the Appellants, which is a case of conspiracy and breach of trust. The facts of these cases completely differ from the instant Appeal. It is pertinent to state that there is no law stipulating that the decision of a 5-Man Panel of the Court of Appeal overrides that of a 3-Man Panel. Section 247 (1) of the 1999 Constitution makes no provision for a 5-Man Panel. It provides as follows:
“For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other Law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal, and in the case of appeals from-
(a) a Sharia Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Islamic Personal law; and
(b) a Customary Court of Appeal, if it consists of

not less than three Justices of the Court of Appeal learned in Customary Law.”
The 5-Man Panel is usually set up to hear and determine Constitutional matters and in some special instances where the Court of Appeal is the last Appellate Court to hear the matter. However, during the 2007 election, the Court of Appeal delivered several conflicting judgments on the same issue. In order to resolve this problem and deter further occurrence, the then President of the Court of Appeal, Hon. Justice Umaru Abdullahi, CON, PCA (RTD) set up a 5-Man Panel that would decide on one of such cases, the decision by the 5-Man would then be adopted as the position of the Court of Appeal and it shall be binding on subsequent decisions of the Court on such issues. The 5-Man Panel became an administrative policy which was also applied in 2011 and 2013.
The issue raised by the Appellant that where the President of the Court of Appeal sits on a Panel, that Panel can overturn the decision of the Court of Appeal is of no moment because the Panel is still sitting in the Court of Appeal and cannot be elevated to the status of the Supreme Court. The provision of Section 247 of the Constitution

is unequivocal on the minimum composition of this Court.
The decision in NATIONAL UNITY PARTY V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (APPEAL NO. CA/A/CV/426/2020) still stands. However, the facts of that case differs from the facts in the instant Appeal. In appeal No. CA/A/CV/426/2020, the Political Parties were not in Court at the time of their de-registration as in the instant case. For this reason, I would refrain from following that decision. The learned trial Court in the instant appeal misconstrued the grouse of the Appellants at the trial Court. The Appellants are challenging the process of their de-registration and not the authority of the 2nd Respondent to deregister the Appellants as put by the learned trial Court. Where there is a laid down procedure for carrying out an act, this procedure must be followed otherwise there will be chaos and anarchy in the society. The power vested in the 2nd Respondent to de-register the Appellants is not a discretionary power but one backed by Statute which is the Constitution of the Federal Republic of Nigeria. The Court is the custodian of the Constitution and has the responsibility

to ensure that a right conferred shall not be taken away without due process.
By the provisions of Section 40 of the Constitution, every citizen is entitled to free association thus;
“Every persons 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.
Provided that the provisions of this Section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”
Where such right is exercised by the creation of a Political Party, such right can only be taken away by due process. Section 225A (B) and (C) of the 1999 Constitution gives the 2nd Respondent the powers to divest a right upon conditions listed therein. The proviso in this Section does not apply in this case as the Appellants had been registered and therefore accorded recognition by the 2nd Respondent.

Let me now deal with the question of whether the situations prescribed by

Section 225A of the Constitution in which the 2nd Respondent shall de-register a Political Party must co-exist or exist in isolation before the power can be exercised. The arguments have turned on whether the provisions should be read conjunctively or disjunctively.
I will start the determination of this question by reproducing the exact text of Section 225A of the 1999 Constitution as follows-
“225A- The Independent National Electoral Commission shall have power to de-register a political party for-
(a) Breach of any of the requirements for registration;
(b) Failure to win at least twenty-five percent of votes cast in:-
(i) One state of the Federation in a Presidential election; or
(ii) One Local Government of the State in a Governorship election,
(c) Failure to win at least-
(i) One ward in the Chairmanship election;
(ii) One seat in the National or State House of Assembly election; or
(iii) One seat in the Councillorship election.“
Both sides have argued on what the provision actually intended by listing the conditions in the manner it did, using the word or in between each of them. Did

it intend that the occurrence of each situation alone should warrant the exercise of the power of de-registration or that all the conditions must occur cumulatively and co-exist before the power can be exercised. In other words, should the word or in between them be read disjunctively?
Section 18(3) of the Interpretation Act Cap 123 LFN, 2004 provides an answer to the question and renders the dispute unnecessary. It provides that “the word “or” and the word “other” shall, in any enactment, be construed disjunctively and not as implying similarity.” See ABUBAKAR V. YARADUA (2008) 19 NWLR (PT. 1120) 1 at 212 – 213 in which the Supreme Court interpreted and applied Section 18(3) of the Interpretation Act in interpreting the word or in a statutory provision listing several situations.
For the above reasons, I uphold the decision of the learned trial Court, that the word or in Section 225A of the 1999 Constitution should be read disjunctively.

In the light of the foregoing, I resolve the lone issue for determination in favour of the Appellant in part and in favour of the Respondent in part.

On the whole

this appeal succeeds in part. The judgment of the Federal High Court delivered in suit No FHC/ABJ/CS/444/2019 is hereby set aside to the extent that it refused to grant the 1st relief claimed for in the Originating Summons and held that the appellants were bound to prove the number of seats they won in the elections that have held. It is hereby adjudged that the Appellants proved their claim for relief I in the originating summons. It is hereby declared that;
1. The de-registration of the appellants by the 2nd Respondent is illegal.
2. The de-registration of Appellants by the 2nd Respondent during the pendency of this suit is hereby set aside.

It is hereby ordered that the 2nd Respondent relists them the Appellants as registered Political Parties.

I make no order as to cost.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned and very distinguished brother, HON. JUSTICE M.B. DONGBAN-MENSEM, PCA. This is to say that I agree totally with the reasoning and conclusions contained therein. I will however want to add a few words concerning the preliminary objection in

respect of the appeal as raised by the 2nd Respondent and argued in its brief of argument.

The Notice of Preliminary Objection as set out in paragraph 3.0 of the brief of argument of the 2nd Respondent reads:-
“Take notice that the 2nd Respondent herein shall raise objection to the competence of the Appellants’ brief of Argument filed on 20th July, 2020 on the ground that the Appellants unilaterally altered the parties as reflected on the Notice of Appeal upon which the said Brief of Argument is predicated.”

The lone issue arising from the Notice of Preliminary Objection (hereafter to be simply referred to as ‘P.O’.) as set out in the brief of argument of the 2nd Respondent, is-
“Whether the Appellants (sic) brief of argument in this appeal is competent.”

The stance of the 2nd Respondent in respect of its P.O. in the main, is that the Appellants by not reflecting on/in their brief of argument all the parties to the appeal as set out in their notice of appeal without procuring the order of Court authorising the “alteration of parties”, have filed a brief of argument that is not a

brief in the instant appeal.
The position of the Appellants in respect of the P.O. in the main, is that having discontinued the appeal against the other parties not reflected on/in their brief of argument, such parties cannot continue to feature as parties in the appeal and ought not to be set out in their said brief of argument. That the 2nd Respondent was trying to ride roughshod on the decisions of the Supreme Court in the case ofRE: APEH (2017) 11 NWLR (Pt. 1576) 252 and PPA V. INEC (2012) 13 NWLR (Pt. 1317) 215; decisions in respect of rules of procedure in the Supreme Court, which are lacking in the Court of Appeal Rules, 2016.
There is no doubt that there is no set of rules of procedure of any one Court in the Federation of Nigeria that has general application to all Courts no matter the hierarchy. Rules of Court are domestic in nature and apply only to the Court in respect of which the rules in question have been made. In my considered view, this Court long ago has said this much in the case of SALAMI V YAHYAH (2009) 17 NWLR (Pt. 1171) 581 per Nweze, JCA; (as he then was) in these words:-
“With due respect to the learned counsel

for the appellant, this first issue formulated for the consideration of this Court betrays a misconception of the intendment of rules of Court. I will explain what I mean.
In our adjudicatory system, the rules of the various Courts in the judicial hierarchy of Courts are remarkable for their heterogeneity. This is not only because they owe their origins to disparate sources, but also because they address the peculiar requirements of the practice and procedure of the Courts where they are in use, Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39.
Thus, the rules of each Court are an autonomous corpus of procedural prescriptions designed for the lubrication of the machinery of the administration of justice in the particular Court. Due to their autonomic character, the draftsman is ever mindful of the primary objective of the rules as handmaids in the administration in a particular Court.
What emerges from this is that rules applicable in one Court do not dictate matters of practice and procedure in a different Court. Hence, it would be wrong for a Court to abandon the rules governing its practice and procedure to flirt with the rules of other

Courts by applying them. Fasakin Foods (Nig.) Ltd. v. Shosanya (2006) 10 NWLR (Pt. 987) 126; Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39; Kowa v. Musa (2006) 5 NWLR (Pt. 972) 1. A Court can only apply other rules of Court where it is authorised to do so by any enabling law, Universal Oil Ltd. v. N.D.I.C. (2008) 6 NWLR (Pt. 1083) 254, 268-269; also, S.T Hon, Civil Procedure in Nigeria (Volume 1) (Port Harcourt: Pearl Publishers, 2008) 5.
It is against this background that I endorse the approach of the lower Court which was able to draw a distinction between the requirements of Order 7 rule 2(2) of the Supreme Court Rules (considered in Nika Fishing Co Ltd. v Lavina Corp. (supra) and Order 11 rule 3(d) (supra)…”
It is therefore obvious that for this Court to apply the decision of the Supreme Court in any case particularly in respect of practice and procedure in an appeal, the provisions of the 2016 Rules of this Court must contain a provision or provisions that is/are word for word the same with the provision of the rules of procedure of the Supreme Court in question. It is such a circumstance that the doctrine of stares decisis would come

into play. The 2016 Rules of this Court came into force on 1st December, 2016. The 2nd Respondent did not cite any particular provision(s) of the Rules of this Court that is/are impari materia with the provisions of the rules of the Supreme Court applied in the cases of Re: Apeh and PPA V. INEC (both supra) that it relied upon in respect of its position in its P.O. In my considered view it would therefore not only amount to an open refusal by this Court to abide by its own rules in entertaining an appeal for it to apply the position of the Supreme Court in the aforementioned cases, but also a surreptitious amendment to its rules, to adopt the position of the Supreme Court in the aforementioned case, by judicial pronouncement as it were. There is no authority in this Court sitting as a Court to amend its own rules. The Rules of this Court are made by the President of the Court, and ipso facto can only be amended by the said President.
I am aware of a letter dated 7th August 2020, written by the 2nd Respondent to the Court after the instant appeal had been reserved for judgment. In the said letter, the fact of the non-inclusion of provisions like those in

the Rules of the Supreme Court and on the basis of which the decisions in the cases of Re: Apeh and PPA V. INEC (both supra) were reached was described “a lacuna”.
With respect this position overlooks the fact that there is no legislation or policy as to the content of Rules of Court. I would take the non-inclusion of the provisions of the Rules of the Supreme Court applied in Re: Apeh and PPA V. INEC (both supra), in the Rules of this Court as a deliberate act of the President of this Court of not wanting the said provision in our Rules and not a lacuna.
It being clear that the 2nd Respondent premised its objection to the hearing of the instant appeal on a non-existent provision of the rules of this Court, it becomes obvious that the said P.O. is ill conceived and must fail. The present attitude of the Courts is that parties should be given their day in Court except there is an incurable situation preventing this.
The very commonsencial or realistic arrangement of the parties in the instant appeal by the Appellants in/on their brief of argument after they had properly discontinued the said appeal against those not now included in the said

brief of argument, should be commended and ought not to be used in preventing the hearing of the appeal as the 2nd Respondent would want or wish.

The P.O. of the 2nd Respondent is accordingly overruled by me too.

My Lord the Hon. PCA, has in my considered view dealt with the relevant or germane issue in the instant appeal to wit the party on whom the burden of proof is when a vested right is being terminated or withdrawn, and I have nothing useful to add to the very exhaustive and illuminating exposition on the issue. Though it is obvious that the interpretation given to the provisions of Section 225(P)(I) of the Constitutionis correct; however it needs no telling that inasmuch as the lower Court wrongly misplaced the burden of proof on a wrong party in the instant case, the application of the appropriate canon of interpretation to the provisions of Section 225 in the light of the misplacement of burden proof has clearly resulted in its reaching a wrong conclusion and which decision must be set aside.

In conclusion for the reasons highlighted above and the fuller reasons contained in the leading judgment, I too allow the instant appeal, and set

aside the judgment of the lower Court. Judgment is accordingly entered by me in the same manner as contained in the leading judgment. I also abide by the consequential orders contained in the leading judgment.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE MONICA B. DONGBAN-MENSEM, Rt. Honourable President, Court of Appeal. I completely agree with the reasoning, conclusions and orders therein.

The appellants as registered political parties commenced suit No. FHC/ABJ/CS/444/2019 at the trial Court to stop the 2nd respondent from deregistering them as political parties. On 30-10-2019, they applied by a motion on notice for an order of interlocutory injunction directing the 2nd respondent from deregistering the appellants pending the determination of the suit. This application was heard and adjourned for ruling to 17-2-2020. Without waiting for the ruling to be delivered and for the final determination of the suit, the 2nd respondent on 6-2-2020, announced the deregistration of the appellants. Meanwhile on 17-2-2020, the trial Court still proceeded to render its ruling granting the order

restraining the deregistration of the appellants.

The appellants had on 14-2-2020 before the ruling was delivered, applied by a motion on notice for-
“(1) AN ORDER of mandatory injunction, directing the 2nd defendant/respondent to forthwith restore the plaintiffs/applicants to their Original Status as registered political parties and thereby reversing the announcement of the deregistering of the plaintiffs/applicants made by the Hon. Chairman of the 2nd respondent on the 6th February, 2020.
(2) AN ORDER of injunction, restraining the 2nd defendant/respondent from deregistering the plaintiffs/applicants again pending the determination of the substantive suit.”

It is noteworthy that paragraphs 10 to 14 of the affidavit in support of the motion deposed that-
“10. On the said 23/01/2020, after confirming services of the motion on the defendants and also the hearing notice, the Court upon hearing the applicants motion for the interlocutory injunction adjourned to 17/02/2020 for ruling.
11. The 2nd defendant/respondent on the 06/02/2020 quite aware of the pending ruling slated for 17/02/2020, announced the

deregistration of the applicants save the 9th and the 26th applicants.
12. The deregistration of the applicants while this Honourable Court is seised of this matter and poised to deliver ruling is on affront on this Honourable Court.
13. The action of the respondent is an attempt to foist a fait accompli on the honourable Court and put this Court in a state of helplessness.
14. This Honourable has the inherent jurisdiction and power to direct the 2nd respondent to restore the applicants to the position they were when the Court adjourned for ruing on the motion.“

Paragraph 5 of the 2nd Respondent’s affidavit in opposition to the application replied thusly-
“5. That paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the said affidavit are untrue, not correct and false and in reaction thereto, I was informed by Wendy Kuku Esq. at the 2nd Defendant’s office at Plot 436, Zambezi crescent, Maitama District, Abuja on 25th February, 2020 at about 3:30pm of the following facts which I verily believe to be true and correct as follows:
i. That the Amended Originating Summons upon which the ruling of 17th

February, 2019 was predicated is not a challenge to the power of the 2nd Defendant to deregister political parties pursuant to Section 225A of the Constitution of the Federal Republic of Nigeria 1999 (supra) in respect of de-registration of political parties in Nigeria
ii. That the 2nd Defendant has power to deregister political parties in Nigeria
iii. That the Amended Originating Summons is incompetent and not founded on any cause of action
iv. That no fait accompli is foisted on the Court as the Court still has the power to determine the subject matter of the Plaintiffs’ suit.
v. That the 2nd Defendant did not act in contempt of the Court
vi. That the doctrine of Lis Pendens does not apply to this suit.”

The application of 14-2-2020 was not heard and determined by the trial Court. The trial Court was silent about it. There is nothing to show why it was not heard and determined. What is clear is that both sides in their affidavits joined issues on whether the 6-2-2020 announcement of the deregistration of the appellants during the pendence of the suit and the application seeking to restrain it foisted a fait accompli

on the Court and was contemptuous of the Court.

Instead of determining this issue, the trial Court on 17-2-2020 proceeded to deliver its ruling granting an injunction restraining the deregistration that to its knowledge had taken place on 6-2-2020. Thereafter it proceeded to hear and finally determine the suit without saying anything concerning the affront on its authority that had foisted on it a fait accompli and negated the proceedings before it. It is obvious that without setting aside the deregistration, further proceedings in the case had been rendered a sterile and useless adventure.

It is not in dispute that the 2nd respondent announced the deregistration of all the appellants together without stating the reason for the deregistration of each of them. Section 225A states the respective reasons on which the deregistration of a political party by the 2nd respondent can be founded. Therefore the deregistration of a political party must be based on one or more of the reasons prescribed therein. A deregistration to be valid must be for any of the reasons in Section 225A of the 1999 Constitution. The blanket deregistration of the appellants without reason is

a violation of Section 225A of the 1999 Constitution. The 2nd respondent that exercised that power given to it by Section 225A has the legal burden to state the reason for the deregistration and to show that reason is one of those prescribed in Section 225A. As held by this Court in Ejefor V Okeke (2000) 7 NWLR (Pt.665) 363 andAgu V Okpoko (2009) LPELR-8286 “It is trite that where a statute vests specific powers in an institution and the exercise of such powers becomes an issue, the institution vested with such power must provide proof that the powers were exercised in the manner provided by law”.
It is glaring that the affront of the authority of the trial Court and the flagrant and contemptuous subversion of the legal process of the Court and the due process of law and the violation of Section 225A of the 1999 Constitution were brazenly carried out by the 2nd respondent during the pendence of the very proceedings they were a party to and concerning the res of the suit, to render the suit illusory.
Should the Court limit itself to the consideration of only the claim that commenced the proceedings and ignore the deliberate action of a party before it that

renders the legal proceedings before it illusory or futile? Should a Court in the determination of a case before it ignore an affront on its authority that defeats its proceedings and subverts the justice of the case? Where the facts of a case expose a constitutional violation in the exercise of a constitutional power affecting the res of the case during the pendence of proceedings, should the Court not pronounce upon it, even though it was not part of the cause for the action?
The exercise of judicial power in a proceedings before the Court involves not only the determination of the cause for the action and the grant of the reliefs expressly claimed for, it also involved the control and protection of the proceedings from abuse and from being defeated by any actions of the party to the case or any other person and protecting the authority of the Court from being demeaned, disreputed and rendered sterile. So anything done during the pendence of a case by any party to the proceedings before a Court that abuses or defeats the legal process of the case or subverts the justice of the case or that affronts, demeans and disreputes the authority of a Court must

be declared invalid and struck down by the Court in exercise of its inherent jurisdiction as a Court. Its exercise of such jurisdiction overrides the principle of pleadings and the reliefs claimed.
Where a thing done by a party to a case during the pendence of proceedings violates a specific provision of the constitution, the Court should be able to pronounce upon it in that proceeding, just as it can deal with the issue of lack of jurisdiction, irrespective of how it arises and the stage of the proceedings in which it arises. A violation of the constitution should not endure for any reason. Once it arises or is raised in any manner at any stage of the proceedings, a Court should be able to determine it, irrespective of the pleadings and the reliefs claimed for.
The trial Court should have pronounced upon the deregistration appellants by the 2nd respondent during the pendence of the suit brought to prevent it, an act that rendered the continuation of proceedings in the suit a futile engagement and added to the growing disregard and contempt for the Constitution and Legal process by government agencies and their officials.
As I had said herein

the deregistration during the pendence of the case at the trial Court rendered further proceedings nugatory and futile. Therefore in dealing with this appeal against the judgment in the following the further proceeding, we cannot avoid pronouncing on the feature that nugated the further proceedings, even though it was not made a ground of this appeal. This Court can do so by virtue of Order 7 Rule 4 of the Court of Appeal Rules 2016 which provides that in deciding an appeal this Court shall not be confined to the grounds set forth in the notice of appeal and by virtue of the principle that a constitutional violation that occurred in the course of the proceedings, affecting it and in this case destroying the res of the action can be considered at any stage and in any manner.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading before now the Judgment prepared and just delivered by my learned brother Monica B. Dangban Mensem JCA (President Court of Appeal).

I am at one with the reasoning and conclusion reached thereat.

In expressing my support for the outcome of this appeal, I take the privileged of restating why the Appeal has to

be allowed in part for the sake of emphasis in the following words.

Considering the peculiar fact of this Appeal wherein, and to my understanding, the Appellants’ complaint in the main is that INEC did not comply with the requirements of Section 225 of the Constitution of the Federal Republic of Nigeria 1999, for the alleged de-registration of their respective political party.
Upon my careful perusal of all the processes filed by respective party, and in particular the 2nd Respondent INEC who is the main actor in the interplay, in nowhere gave any reason for the alleged de-registration.
In my humble view, neither of the political parties should be left in the dark as to the reason or reasons for its de-registration.
The second respondent on who the burden is placed has in this circumstance failed to discharge the burden. Agree, it has the vires to de-register any political party that fails to satisfy any of the conditions stipulated under Section 225 A, B and C of the 1999 Constitution of the Federal Republic of Nigeria.
In exercising that power, he should communicate to the affected political party the reason for the

de-registration.
The foregoing therefore informed the basis for our departure from our decision in Appeal Number CA/A/CV/426/2020 between THE NATIONAL UNITY PARTY VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION delivered on 29th day of July, 2020 having regards to the peculiar fact of this Appeal.

For the foregoing and the fuller reasons contained in the lead judgment, I also allow the Appeal in part and abide by the consequential orders therein.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, MONICA B. DONGBAN-MENSEM, HPCA.

I subscribe to the resolutions of issues in the lead judgment by agreement to the reasoning and conclusion arrived thereat.

The preliminary objection of the 2nd Respondent on issue of jurisdiction lacks merit, cannot see the light of the day and hereby dismissed. On the main appeal, there is nothing to show that the 2nd Respondent (INEC) discharged burden legally placed on it by virtue of the provision of Section 225A of the Constitution of Federal Republic of Nigeria, 1999 (as amended) on de-registration of Political Party as

affected the Appellants herein.
It is undisputable that the 2nd Respondent admitted that the Appellants were registered Political Parties. The onus lies on it to justify their de-registration and not for the Appellants to show and establish why they should not be de-registered. Section 131 and 132 of the Evidence Act, 2011 (as amended) are emphatic on this point.
The proper interpretation of Section 225A of the 1999 CFRN implicates that before the 2nd Respondent (INEC) can validly proceed to de-register any Political Party, the said Political Party must have failed to satisfy the minimum electoral requirements in sub-sections (B) & (C) of Section 225A (supra).
I am therefore of the opinion that this particular appeal is factually distinguishable from the unreported judgment of this Court delivered on 29th day of July, 2020 in Appeal No. CA/A/CV/426/2020.
In nutshell, the failure to adhere to the due process of the law by the acts of the 2nd Respondent on the de-registration of the Appellants adversely reflected on the acts carried out on the 6th of February, 2020 during the pendency of the suit and motion for interlocutory injunction to

restrain the de-registration by the 2nd Respondent, after the said motion had been heard and adjourned for Ruling.

I also found merit in the main appeal and allow same as contained in the lead judgment. I therefore abide by the consequential orders therein.

Appearances:

KEHINDE OGUNWUMIJU, SAN, FCIARB with him, TUNDE BABALOLA, ESQ., KEHINDE EDUN, ESQ., SUNDAY ONUBI, ESQ., FRANCIS MAMAH, ESQ., and TUNDE ADEJUMO, ESQ. For Appellant(s)

MAIMUNA LAMI SHIRU (MRS.) with him, TIJANI GAZALI, ESQ., and BAJULAIYE B.F. (MISS) ALL OF THE CIVIL LITIGATION DEPARTMENT, FEDERAL MINISTRY OF JUSTICE for the 1st Respondent.

T.M. INUWA (SAN), ALHASSAN A. UMAR (SAN), with them, S.O. IBRAHIM, ESQ., WENDY KUKU (MRS), BASHIR M. ABUBAKAR, ESQ., I.S. MOHAMMED, ESQ., ANTHONY ONYERI, ESQ., and S.M. DANBABA, ESQ. for the 2nd Respondent For Respondent(s)

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