DAVIDSON & ORS v. INEC (2021)

DAVIDSON & ORS v. INEC

(2021)LCN/15027(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, February 03, 2021

CA/ABJ/CV/732/2020

RATIO

FAIR HEARING: PRINCIPLE OF FAIR HEARING

Fair hearing is nothing more than an opportunity to put forward your case. It was explained in the case of PDP & ORS V EZEONWUKA & ANOR (2017) LPELR-42563(SC) thus:
“Where a party who is entitled to be given an opportunity to be heard is denied that opportunity, which in fairness he is entitled, the proceedings and order emanating therefrom, as held by Wheeler, J, in OGUCHE v. KANO PUBLIC SERVICE COMMISSION (1974) 1 NWLR 128, are all null and void for breaching rules of natural justice. I completely agree. This Court arrived at the same conclusion in RASAKI A. SALIU v. TAIWO EGEIBON (1994) 6 SCNJ 223; (1994) 6 NWLR (Pt.348) 23. A breach of the right to fair hearing renders the proceedings, including the judgment in the case, null and void. A suit or an action in a law Court contrived to deny parties adversely affected an opportunity to be heard before the judgment affecting them is one designed mala fide or mischievously to deny fair hearing. Public policy does not permit this mischief. It completely abhors the mischief. The principle of audi alteram partem is recognised as a vibrant component of the principle of fair hearing. See ARUBO v. AIYELERU & ORS. (1993) 2 SCNJ.90; (1993) 3 NWLR (Pt.280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain. A suit or action designed, as the instant, to deny the persons most adversely affected as the 5th co-appellant, Hon. Ben Nwankwo, their right to audi alteram partem or an opportunity to be heard has no place in our adversal jurisprudence. Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ 57; (1987) 2 NWLR (Pt.58) 587.”Per EKO, J.S.C.

The Respondent is the administrative body being accused here and undoubtedly, as an administrative body, it must observe the rules of fair hearing, see GYANG & ANOR V COP LAGOS STATE & ORS (2013) LPELR-21893(SC) where the apex Court said thus:
“It has long been settled in a line of cases decided by this Court that administrative bodies or tribunals, acting judicially in the determination or imposition of a decision that is likely to affect the civil rights and obligations of a person, are bound and enjoined to strictly observe the principles of fair hearing. See R v. ELECTRICITY JOINT COMMISSION (1968) NMLR 102: ADEYEMI v. ATTORNEY-GENERAL FEDERATION (1984) 1 SCNLR p. 525: ADIGUN v. ATTORNEY-GENERAL OYO STATE & 18 ORS (1987) 1 NWLR (Pt.53) 682; OYEYEMI V. COM. FOR LOCAL GOVERNMENT (1992) 2 NWLR (pt.226) 661 at 67 AKIBU v. ODUNTAN (2000) 13 NWLR (pt.685) p.446; STATE v. AJIE (2000) 11 NWLR (pt.678) 434 and AKANDE v. NIGERIAN ARMY (2001) 8 NWLR (pt.714) P.1. This principle often expressed by the Latin Maxim “Audi Alteram Partem” meaning “hear the other side,” has been for long enshrined in our jurisprudence. These decisions deal with this general principle of natural justice.” Per GALADIMA, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.
FAIR HEARING: WHAT CONSTITUTES FAIR HEARING

Fair hearing does not mean a person must be forcefully heard. Once he is given ample opportunity to be heard, the constitutionally guaranteed principle of fair hearing is fulfilled. PER YARGATA BYENCHIT NIMPAR, J.C.A.

FAIR HEARING: ATTITUDE OF THE COURT TO COUNSELS CLAIMING DENIAL OF FAIR HEARING

It is common with counsel to always scream that fair hearing was denied when in fact no breach was occasioned, they usually disregard the facts upon which the alleged breach must be assessed, this was the observation of AUGIE, JSC in the case of GOVERNOR OF IMO STATE & ORS V E.F. NETWORK (NIG) LTD & ANOR (2019) LPELR-46938(SC) thusly:
“The Appellants are in this Court holding a banner with lack of fair hearing on it. But fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, a breach of which will nullify the proceedings in favour of a victim. It cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached – see Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. In other words, it is not enough for a party alleging such a breach to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide the case in his favour, just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading- see Adebayo V. A.-G., Ogun State (2008) 7 NWLR (Pt.1085) 201, wherein this Court per Tobi, JSC, hit the nail on the head, as follows: Parties, who have bad cases, embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation. They make the defence in most inappropriate cases because they have nothing to canvass in their favour. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional provision available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutionality alone because it is not available to them just for the asking. In this case, it is quite clear that the trial Court bent over backwards to accommodate the Appellants, who were nonchalant about the case. They failed to utilize the opportunity given to them by the trial Court, and cannot be heard to say that their right to fair hearing was violated.” PER YARGATA BYENCHIT NIMPAR, J.C.A.

FAIR HEARING: EFFECT OF BREACH OF FAIR HEARING

I agree that where a breach of fair hearing occurs, the entire process is nullified, see MFA & ANOR V. INONGHA (2014) LPELR-22010(SC) where the Supreme Court held thus:
“It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See: Tsokwa Motors (Nig.) Ltd. V. U.B.A. Plc. (2008) All FWLR (pt. 403) 1240 @ 1255 A-B; Adigun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 674; Okafor v. A.G. Anambra State (1991) 3 NWLR (pt.200) 59; Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in the recent decision of this Court in: Abubakar Audu V. FRN (2013) 53 NSCOR 456 @ 469: “The law is indeed well settled that fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causasua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro V. Onuma (1990) 3 NWLR (Pt.136) 22. The effect of a denial of fair hearing is trite in law. In other words once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court, become a nullity.” Per KEKERE-EKUN, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

DR. ISRAEL NONYEREM DAVIDSON (NATIONAL CHAIRMAN) 2. ENGR. ALEXANDER OCHEINU (NATIONAL YOUTH LEADER) (Suing For Themselves And On Behalf Of The Promoters And Financiers Of The Reform And Advancement Party) 3. REFORM AND ADVANCEMENT PARTY (RAP) APPELANT(S)

And

INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Federal High Court sitting in Abuja delivered by HON. JUSTICE N.E. MAHA on the 22nd July, 2020 wherein the lower Court entered judgment against the Appellants and dismissed their suit. The Appellants’ suit challenged majorly the procedure adopted by the Respondent (which denied fair hearing to the Appellants) in the exercise of the powers conferred on the Respondent under Section 225A of the Constitution of the Federal Republic of Nigeria 4th alteration. The Appellants dissatisfied with the judgment, filed a Notice of Appeal dated 27th July, 2018 setting out 4 grounds of Appeal.

Facts leading to this appeal are straight forward and can be summarized in the following way. The Appellants herein were the Plaintiffs at the trial Court. The Appellants at the lower Court sought the determination of the following questions:
1. Whether the power vested on the Respondent to deregister political parties provided in Section 225A of the 4th Alteration to the 1999 Constitution and Section 78 (7)(a)(i) and (ii) of the Electoral Act 2010 (as amended 2015)

can only be exercised when democratically organized elections has been conducted at the Federal and State levels; and in the seven hundred and sixty eight local governments recognized in the Constitution.
2. Whether the powers conferred on Independent National Electoral Commission (INEC) to carry out a review of the performance of political parties after the 2019 general elections, to ascertain the political parties that qualify to continue as political parties and those that are due for deregistration, is an absolute uncontrolled power and can be reasonably applied to a political party registered in less than five months to the 2019 general elections.
3. Whether the term “failure to win at least 25 percent of the votes cast in one State of the Federation in a Presidential election or 25 percent of the votes cast in one local Government Area of State in a Governorship election. “Failure to win at least one ward in a Chairmanship election, one seat in a Councillorship ward in a Governorship election, one seat in a Councillorship election” provided in Section 225A of the 4th Alteration to the 1999 Constitution for the purpose of

assessing of political parties to determine compliance with the requirements for their registration cannot be reasonably conducted on the basis of local government Chairman and Ward Councillorship election conducted in only the Federal Capital Territory.
4. Whether having regard to the settled judicial authorities affirming that constitutional provisions have equal effect and that no Section of the Constitution is inferior to the other, the said Section 225A of the 4th alteration to the 1999 Constitution is totally at variance with the clear, unambiguous and express provisions, spirit and tenor of Section 39 and 40 of the same 1999 Constitution of the Federal Republic of Nigeria (as amended).

The Appellants sought that upon the determination of above questions, they asked for the following reliefs:
a. A DECLARATION THAT the powers that vested in Independent National Electoral Commission to register and regulate activities of political parties in Nigeria, in addition to the powers to deregister political parties provided in Section 225A of the 4th Alteration to the 1999 Constitution and in Section 78 (7)(a) (i) and

(ii) of the Electoral Act 2010 (as amended 2015) can only be exercised when democratically organized election has been conducted at the Federal and State levels; and in the seven hundred and sixty eight Local Governments recognized in the 1999 Constitution.
b. A DECLARATION that the powers conferred on the Independent Electoral Commission to carry out a review of the performance of political parties after the 2019 general elections, to ascertain the political parties that qualify to continue as political parties and those that are due for deregistration, is not an absolute uncontrolled power and cannot be reasonably applied to a political party registered in less than five months to the 2019 general election, as such political parties require adequate time and resources to gradually establish their presence in the 36 states of the federation and seven hundred and sixty-eight Local Government recognized in the 1999 Constitution.
c. A DECLARATION that the term ‘failure to win at least 25 per cent of the votes cast in one state of the Federation in a Presidential election or 25 per cent votes cast in one local government Area of a state in a Governorship election,

“failure to win at least one seat in a chairmanship election, one seat in the National or State Assembly election or one seat in a councillorship election” provided in Section 225A of the 4th alteration to the 1999 Constitution, for the purpose of assessing of political parties to determine compliance with the requirement for their registration cannot be reasonably conducted on the basis of Local Government chairman and ward councillorship election conducted in the Federal Capital Territory only; but rather on the basis of local Government chairmanship and ward councillorship election conducted in the seven hundred and sixty eight local governments recognized in the 1999 Constitution.
d. A DECLARATION that having regard to the settled judicial authorities affirming that constitutional provisions have equal effect and that no section of the Constitution is inferior to the other, the said Section 225A of the 4th alteration to the 1999 Constitution is totally at variance with the clear, unambiguous and express provisions, spirit and tenor of Sections 39, and 40 of the same 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended).

AN ORDER directing and compelling the defendant to immediately restore the registration of the 3rd Plaintiff as a political party duly registered in Nigeria under the 1999 Constitution of the Federal Republic of Nigeria (as amended) and under the Electoral Act 2010 (as amended) 2015; and to continue recognizing, relate and communicate all official correspondences with the 1st plaintiff, Dr. Israel Nonyerem Davidson as the National Chairman of the 3rd Plaintiff.
f. A PERPETUAL ORDER restraining the defendant from embarking on any future deregistration of the 3rd plaintiff or carrying out any purported review of the performance of political parties to ascertain the political parties that qualify to continue as political parties and those that are due for deregistration; until such a time democratically organized elections has been conducted at the federal and states level, and local Government chairmanship and ward councillorship election have been conducted in the seven hundred and sixty-eight local Governments recognized in the 1999 Constitution to determine the actual strength of the 3rd Plaintiff.
g. AND FOR SUCH OTHER ORDERS as the Court may deem fit to make in the circumstances of the case.

Issues were joined through affidavits and annexed documents, the suit being one brought via an originating summons and the matter was heard as parties adopted their written addresses and after due consideration, the Court below entered judgment against the Appellant and dismissed their claim, thus the appeal.

The Appellants’ brief settled by OKERE KINGDOM NNAMDI, ESQ., is dated 7th day of September, 2020 and filed on the same day and distilled 4 issues for determination as follows:
a. Whether the Respondent observed the basic principles of natural justice, fair hearing, due process of law, equity and good conscience and acted justly in accordance with law in exercising its power of deregistration of the 3rd Appellant under Section 225A of the 4th alteration to the Constitution of the Federal Republic of Nigeria by wrongly placing reliance on the Plaintiff/Appellants’ Exhibit C, D, E attached to the originating summons. (Distilled from Grounds 1 of the Notice of Appeal).
b. Whether the trial Judge observed the basic principles of natural justice, equity and good

conscience and acted justly in accordance with the law in deregistering the 3rd Appellant which was registered on the 14th of August, 2018, based on the assessment of the performance of the 3rd Appellant in the 2019 general election conducted in February and March 2019 (six months) after registration. (Distilled from Grounds 2 of the Notice of Appeal).
c. Whether the trial Judge acted justly and in accordance with the law when she struck out the Appellant’s reply on point of law attached to the further affidavit and thereby visited mistake of counsel on innocent litigant, on the grounds that the said reply was not signed with the signature of counsel, irrespective of counsel oral application to the Court during hearing and formal application letter to the Court praying to be allowed to formally endorse his signature on the said reply which were all rejected by the trial Judge; AS PER PAGE 81 OF THE RECORDS OF APPEAL. (Distilled from Grounds 3 of the Notice of Appeal).
d. Whether the powers exercisable by the Independent National Electoral Commission under Section 225A of the 4th alteration to the 1999 Constitution can be rightfully exercised

when democratically organized elections has not been conducted in the entire State levels in Nigeria; and in the seven hundred and sixty eight local governments recognized in the 1999 Constitution and whether “Failure to win at least 25 per cent of the votes cast in one State of the Federation in a presidential election or 25 per cent of the votes cast in one Local Government Area of a State in a Governorship election.” “Failure to win at least one ward in Chairmanship election, one seat in the National or State Assembly election or one seat in Councillorship election”, provided in Section 225A of the 4th alteration to the 1999 Constitution, for the assessment of political parties to determine compliance with the requirements for their registration can be conducted on the basis of Chairman and Ward Councillorship election conducted in only the Federal Capital Territory. (Distilled from Grounds 4 of the Notice of Appeal).

The Respondent’s Brief settled by AGADA ELACHI, PH.D., is dated 17th September, 2020 and filed on the 22nd September, 2020. It formulated 4 issues thus:

a. Whether the Respondent followed due process of law, equity and good conscience and acted justly in accordance with the law in de-registering the 3rd Appellant. (Distilled from Grounds 1 of the Notice of Appeal).
b. Whether the trial Court occasioned a miscarriage of justice on the Appellants upon holding that the Respondent validly de-registered the 3rd Appellant, which was registered on the 14th day August, 2018. (Distilled from Grounds 2 of the Notice of Appeal).
c. Whether the trial Court acted in accordance with the law by striking out the unsigned reply on points of law filed by the Plaintiffs at the trial Court. (Distilled from Grounds 3 of the Notice of Appeal).
d. Whether the powers exercisable by the Independent National Electoral Commission under Section 225A of the 4th Alteration to the 1999 Constitution is dependent on future elections of political parties. (Distilled from Grounds 4 of the Notice of Appeal).

Thereafter the Appellant filed a Reply brief dated 30th September, 2020 and filed on the same day.

APPELLANTS’ ARGUMENT
ISSUE ONE AND TWO
The Appellants argued that the learned trial Judge erred in law when she relied on Exhibits “C”

“D” and “E” to hold that the Appellants were accorded fair hearing before the 3rd Appellant was deregistered. Contrary, to the findings of the trial, the Respondent acted unjustly in exercising its power of deregistration of the 3rd Appellant under Section 225A of the 4th alteration to the Constitution of the Federal Republic of Nigeria. They submitted that Exhibits C, D & E (P. 22, 23 and 24 of records) suggest that Respondent was embarking on assessment of the 3rd Appellant to determine compliance with for their registration for the purpose of deregistration. They also submitted that Exhibits C, D & E were pleaded by the Appellants to show that the Respondent created leadership crisis for the 3rd Appellant by recognizing the Deputy National Chairman (Grace Isheku) rather than the 1st Appellant (Dr. Israel Nonyerem Davidson) by sending correspondences to her which affected the 3rd Appellant’s non participation in subsequent election after 2019 general election. They reproduced Section 36(1) and (2) (a) of the 1999 Constitution of the Federal Republic of Nigeria. From the above Sections cited above, the Respondent ought to

allow any party that will be affected by the decision of deregistration to make presentation on why it should not be deregistered i.e. to show cause for its non performance in the election and why its rights under Section 40 of the Constitution will not derogate. According to the Appellants, the Respondent’s act of not giving 3rd Appellant opportunity to show cause over its performance at the elections and why it should not be deregistered offends Section 36(1) and (2) (a) of the 1999 Constitution and therefore illegal and unconstitutional.

ISSUE THREE
The Appellants contends that the trial Judge acted unjustly and wrongly when she visited mistake of Counsel on innocent litigant by striking out the reply brief attached to the further affidavit on the grounds that the said reply was not signed by Counsel irrespective of Counsel’s oral application to the Court and a formal application letter to allow Counsel endorse his signature on the said reply which were all rejected (See P. 81 of Records). Cited R. LAUWERS IMPORT-EXPORT V. JOZEBSON INDUSTRIES CO. LTD 1988 LPELR 2934 SC; G.B.A. AKINYEDE V. APPRAISER (1971) 1 ALL N.L.R 162, DOHERTY V. DOHERTY

(1964) 1 ALL N.L.R 299; BOWAJE V. ADEDIWURA (1976) 6 SC 143; SALEH V. MONGUNO & ORS (2006) LPELR 2992 SC; IBODO V. ENAROFIA (1980) 5-7 SC; NNEJI V. CHUKWU (1988) 3 NWLR (PT. 81) 84; OBIDIARU V. UNIQUE & ANOR (1986) 3 SC 39; AFOLABI V. ADEKUNLE (1983) 8 SC and BELLO V. A.G. OYO STATE (SUPRA) 870 to support their argument that the Court will not visit the mistake of Counsel on the litigant.

The Appellants also contends that this principle should apply with equal force in this case rather than decide the case on the mistake of learned counsel to the Appellants, the case should be decided on the merit based on the undisputed facts before the Court.

ISSUES FOUR
The Appellants contend that the powers exercisable by the Independent National Electoral Commission under Section 225A of the 4th alteration to the 1999 Constitution can only be rightfully exercised when democratically organized elections has been conducted in the entire State and Local Governments levels in Nigeria. The Appellants submits that based on Section 225A of the 4th alteration to the 1999 Constitution, for the assessment of political parties to determine

compliance with the requirements for their registration/deregistration cannot be conducted on the basis of Chairman and Ward Councillorship election conducted in only the Federal Capital Territory and such does not equitably represent the performance and acceptability of the 3rd Appellant nationwide. According to the Appellants, an organized election must take place in not less than 2/3 majority, if not all local governments in Nigeria as recognized by the Constitution to determine the performance of the 3rd Appellant, and until that is done, the power of the Respondent to deregister is not ripe to be exercised. They submitted that it will be unjust to assess the performance of 3rd Appellant when democratically conducted elections have not taken place in all the States of the Federation. The Appellants states that since the registration of the 3rd Appellant in August, 2018, some States governorship elections are held out of the season of the general election, such as Anambra, Edo, Ondo, Ekiti, Osun Etc. These are States that the 3rd Appellant has adequate representation and hopes to win and it is therefore unjust to deregister the 3rd Appellant when governorship elections have not held in these States.

The Appellant also contends that once the power to be exercised is not ripe, there is no room to exercise such powers at all, talk less of doing so arbitrarily, as there is no provision for blank and arbitrary power vested in or possessed by INEC to deregister political parties under Section 225A of the 4th Constitutional alteration. Cited ONUEGBU & ORS V. AG.IMO STATE & ORS (2012) LPELR 19691 CA. They submitted that the Respondent must at all times exercise its powers to deregister when such power is ripe and in accordance with constitutional provision of fair hearing in Section 36(1) and (2) of the Constitution, be denied right to exist under Section 40 of the same Constitution because political parties exist by virtue of constitutional provisions of Section 222 of the 1999 Constitution and the Electoral Act and where the political party meets the conditions provided by the laws, it will take compliance with constitutional provision and the principles of natural justice, equity and fair hearing to deregister it.

Furthermore, the Appellant asked the following questions:

Whether the powers of the Respondent can be exercised when democratically conducted elections have not been conducted throughout the States and Local Government level of the Federation? Whether the power of the Respondent can be exercised on the basis of election conducted in six local area councils of the FCT, as doing so does not equitably represent the performance and acceptability of the 3rd Appellant nationwide. Cites SKYE BANK V. IWU 2017 NWLR (PT. 1590) 24 SC 88-89; IKUFORIJI V. FRN (2018) LPELR 43884 SC; MALLAM ABUBAKAR & ORS V. SAIDU USMAN NASAMU & ORS (2012) LPELR-7826 SC; ISHOLA V. AJIBOYE (1995) 1 NWLR (PT. 352) 506; P.D.P V. C.P.C & ORS (2011) LPELR 2909 SC; AG ABIA STATE V. AGF (2002) LPELR 611 SC; AG ONDO STATE V. AGF & ORS (2002) LPELR 623 SC; NYAME V. FRN (2010) 7 NWLR (PT. 193) 344 SC and AGF V. AG ABIA STATE (2001) 11 NWLR (PT. 725) 736. The Appellant urged this Honourable Court to set aside the entire judgment of the trial Court.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent argued that it is trite law that the principle of fair hearing is fundamental to all Court procedure and proceedings, and like jurisdiction, the

absence of it vitiates the proceedings no matter how well conducted, referred to ATANO V. A.G. BENDEL STATE (1988) 2 NWLR (PT. 75) 132. The Respondents submits that the apex Court defined “fair hearing” in the following cases ASAKITIKPI V. THE STATE (1993) LPELR-572(SC); OJUKWU V. NNORUKA (2000) NWLR (PT. 641) 360; JOSIAH V. THE STATE (1985) 1 NWLR (PT. 1) 125; MFA & ORS V. INONGHA (2014) LPELR-22010SC and PAM & ANOR V. MOHAMMED & ANOR (2008) LPELR 2895 (SC). The Respondent submits also that the Appellants alleged that by virtue of Section 225A of the 4th Alteration to the 1999 Constitution the Respondent ought to give opportunity to the Appellants to show cause for its non performance in the election and why it’s right under Section 40 of the Constitution will not be derogated. The Respondent also submits that the Constitution governs the de-registered of political parties in Nigeria and by Section 225A of the 1999 Constitution gave the power to de-register any political party in Nigeria for failure to fulfill the provided requirements but did not provide that the Respondent must invite every political party in Nigeria to show

cause before it can be de-registered and such procedure cannot be read into the Constitutional provision. The Respondent states that the Appellants’ exhibited as evidence a letter which the Respondent wrote notifying the Appellants of its de-registration, the duty is on the political party to ensure that it meets the constitutional requirement at all times. The Constitution does not give the Respondent any discretion other than to apply it as stated in the Constitution.

ISSUE TWO
The Respondent argued that it is a pillar of the rule of natural justice that any person before a Court of law must have his civil rights and obligations decided by an impartial adjudicator by ensuring fair play, justice and equity as stated in IROLO & ORS V. UKA & ANOR (2002) LPELR-3335 SC. The Respondent also stated that the trial Court did not ignore the basic principles of equity and natural justice but in the interest of justice, equity and good conscience stood by the law and interpreted the Constitution as it is without more which cannot be equated to mean that the Appellants were not accorded fair trial or that there was a miscarriage of justice against Appellants.

According to the Respondent, the Appellants alleged that it is a fraudulent act by the Respondent to register the 3rd Appellant and thereafter de-register it within six months, it is worthy of note that the Appellant enjoyed the benefit of registration in accordance with the constitution but does not want to abide with the requirements of staying registered in line with the same constitution. And also the Appellants did not inform the trial Court what amount to adequate time to be granted to them to enable them win an elective position to qualify them as a political party in Nigeria without facing deregistration having been caught up with the provisions of Section 225A of the Constitution. Section 78 (1), Part V of the Electoral Act, 2010 (As Amended 2015) provides for conditions to be fulfilled by all political parties and 3rd Appellant fulfilled it hence its registration with the Respondent, it is preposterous for the Appellants to state that it is a fraudulent act by the Respondent to de-register the 3rd Appellant within six months even when they did not show that the 3rd Appellant won any election and ought not to have been de-registered by the Respondents.

The Respondent cites EKEH V. AMAECHI & ORS (2008) LPELR-9262 (CA); EZEUGO V. OHANYERE (1978) 6-7 SC; MOHAMMED IDRISU V. MODUPE OBAFEMI (2004) 11 NWLR (PT. 884) 394; OKPE V. FAN MILK PLC & ANOR (2016) LPELR 42562 (SC) and EZE V. STATE (2017) LPELR-42006 (CA).

The Respondent also argued that the interpretation of law as regards the powers of the Respondent to deregister a political party that has not met up with the provisions of the Constitution on remaining a registered political party and it is trite law that Judges should not give judgments based on sentiments or on their whims and caprices but on the law and law alone as regards sentiments as stated ADAMU SULEMAN & ANOR V. COMMISSIONER OF POLICE, PLATEAU STATE (2008) LPELR-3126 (SC). The Respondent urged the Court to hold that no principle of equity and natural justice was ignored and that the trial Court was right to have held that the Respondent acted justly and in accordance with the law by de-registering the 3rd Appellant in February, 2020 based on the assessment of the performance of the 3rd Appellant in the 2019 general elections, of which the 3rd Appellant did not win any

elective positions. The Respondent further states that the intendment of the legislature in empowering the Respondent to deregister political parties by making law providing conditions for de-registration, cannot be over emphasized. The Respondent urged this Honourable Court to hold that the trial Court did not occasion any miscarriage of justice on the Appellants upon holding that the Respondent validly de-registered the 3rd Appellant which was registered on the 14th day of August, 2018 for failure to win any elective position as required by the Constitution of the Federal Government of Nigeria.

ISSUE THREE
The Respondent contends that the trial Judge relied on SLB CONSORTUIM LIMITED V. N.N.P.C (2011) 9 NWLR (PT. 1252) 317 to declare that the unsigned reply address of the Plaintiffs filed by their solicitor is incompetent and struck it out accordingly. The Respondent cited the case of NWOSU V. OGAH & ORS (2016) LPELR-40851 (CA) and ADEFARASIN V. DAYEKH (2007) 11 NWLR (PT. 1044) 894.The Respondent submits that they concede that the process in question was not an originating process in the strict sense of the word, it was a legal document before

the Court and it is worthy to note that an unsigned Court process is and cannot be given notice before the Court because it’s like a worthless paper and incapable of conferring legal benefits. Also it stated that the issue of unsigned Court process has been settled by plethora of authorities cited the case of MCVEIL INVESTMENT LTD & ANOR V. OFOLUE (2016) LPELR-40575 (CA); KIM V. GOV OF PLATEAU STATE & ORS (2016) LPELR-40793; OMEGA BANK NIGERIA PLC V. O.B.C. LTD (2005) ALL FWLR (PT. 249) 1964; NWOSU NORTH AND SOUTH INT’L LTD & ANOR V. NIGERIA INT’L TRADING AND INDUSTRIAL CORPORATION LTD (2014) LPELR-23425 (CA); AIKI V. IDOWU (2006) 9 NWLR (PT. 984) 47; ALHAJI JIBBO ADAMU V. ALHAJI SAMBO BAUCHI (1977) NNLR 131; REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA V. RAHMAN AKINDELE (1967) NMLR 263; OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521; FIRST BANK OF NIGERIA LTD & ANOR V. MAIWADA & ORS (2012) 51 NSCQR 155; FRAPHINO PHARMACEUTICALS LTD & ANOR V. JAWA INTERNATIONAL LTD & ORS (2012) 51 NSCQR 219 and SLB CONSORTUIM LIMITED V. N.N.P.C (2011) 52 NSCQR 269.

The Respondent argued that the Appellant alleged that

despite their oral and written request, the trial Court struck out the Appellant’s reply on points of law for being unsigned but from the record of Court, it clear that the Plaintiffs’ Counsel only made such request after the trial Court had already delivered judgment in the matter and thus had became functus officio (See Page 81 of Records). Assuming without conceding that the trial Court had considered the submissions in the reply address notwithstanding the legal defect of the document, those submissions are only an attempt to repeat the submissions in address in support of the originating summons and addresses no new points. The Respondent urged the Court to hold that the trial Court acted in accordance with the law when it struck out the unsigned reply on points of law filed by the Appellants.

ISSUE FOUR
The Respondent argued that the Appellants alleged that under Section 225A of the Constitution, 4th alteration No. 9 Act, 2017 as amended can only be rightfully exercised when democratically organized elections has been concluded in the entire State levels in Nigeria and in the 768 Local Governments recognized in the 1999 Constitution.

The Respondent states that the 3rd Appellant fell short of the provisions of Section 225A (a) and (b) respectively as there was no evidence to show that the Appellants won at least 25 percent of the total vote cast as required by the Constitution to avoid been de-registered by the Respondent. The Respondent submits that the argument of the Appellants that the Chairmanship and Councillorship elections must be conducted in all the States in Nigeria is untenable because the provision of Section 225 of the Constitution is not dependent on conducting elections in all States of Nigeria, much less the Appellant did not even show by way of credible evidence that any candidate of the 3rd Appellant was participating in any of the purported future elections, there was no evidence of conduct of it’s primaries or nomination of candidates for any future elections referred to neither was a timetable for the said future election shown to the trial Court. Also it is trite the Courts deals with credible facts placed before it and not mere speculations on possibilities or futuristic projections as stated in AGHARUKA V. FIRST BANK OF NIGERIA LIMITED & 2 ORS (2010) 3 NWLR (PT. 1182) 465.

The Respondent states that the Constitution could not have interpreted to suspend the constitutional powers of the Respondent to de-register political parties who are in contravention of the said Section on the grounds that it has not crystallized and even the Appellants making the assertions have no credible proof of. Also Section of the Constitution of Nigeria cannot be extended to mean that the Respondent must register all political parties and also that all political parties must remain registered even when same have fallen short of the clear provisions of the Constitution of the Federal Republic of Nigeria. The Respondent submit that all elections contemplated within the purview of Section 225A of the Constitution have been conducted since after the registration of the 3rd Appellant as a political party in Nigeria and there is no vacancy in any local government or area council in Nigeria presently. Cited the case of APC V. AGBAJE & ORS (2015) LPELR 25668 (CA); PDP V. INEC (2014) 17 NWLR (PT. 1437) 525 and AKEREDOLU V. MIMIKO (2014) 1 NWLR (PT. 1388) 402. According to the Respondent the trial Court was right to have

given the ordinary meaning of the words in Section 225A of the Constitution as they were clear and unambiguous so as to avoid absurdity or be in conflict with other provisions in the Constitution, referred to FIRST BANK V MAIWADA (2012) 51 NSCQR 155; BUHARI & ANOR V. OBASANJO & 264 ORS (2005) 13 NWLR (PT. 941) 1; GLOBAL EXCELLENCE COMMUNICATIONS LIMITED & 3 ORS V. DUKE (2007) 16 NWLR (PT. 1059) 22 and A.G. OF BENDEL STATE V. A.G. OF THE FEDERATION & ORS (1982) 3 NCLR 1.

The Respondent also argued that Section 225A of the 1999 Constitution did not state that the Respondent can only de-register any political party after the total elections have been concluded neither did it state that the Respondent would have to wait for the conduct and conclusion of futuristic elections before it can carry out the powers vested on them by the provisions of the said Section. It will be absurd for the trial Court to have interpreted Section 225A of the 1999 Constitution differently and as a result of this.

Furthermore, the conditions for de-registration of political party provided in Section 225A of the Constitution therein that a political party

that violates or breaches any of the grounds is liable to being de-registered and the Respondent is not mandated to await violation of others grounds for it to be able to exercise its power of de-registration of the political party.

Finally, the Respondent urged the Court to uphold the findings and decisions of the trial Court as captured in the Judgment delivered on the 22nd day of July, 2020 and dismiss this appeal with cost.

APPELLANTS’ REPLY BRIEF
The Appellants argued that the submissions of the Respondent are misapplications of law and facts, deliberately intended to mislead the Court, there is nothing in the wrongful conduct of the Respondent in deregistering the 3rd Appellant without giving the Appellants opportunity to be heard that imputes balancing justice as justice as “justice is not a one-way traffic” or “justice as two-edged sword”. The Appellants’ contention is on how the powers conferred in the said Section 225A of the 4th alteration can be exercised and whether the said Section has amended or suspended other provisions of the Constitution, particularly the fair

hearing/procedural provisions of Section 36(2) (a) of the Constitution which the Respondent failed to show. Continuing, the Appellants state that the Respondent cannot for any reason whatsoever de-register any political party without according such party opportunity to be heard and no agency of the government has such absolute powers, not even the Court with large constitutional judicial powers exercises its powers without according fair hearing to parties. According to the Appellants chapter four, rights are fundamental to human, and can only be derogated by due process of law, in line with Section 45 of the Constitution and anything outside this remains unconstitutional and for the purpose of exercising the rights to form and belong to a political party guaranteed in Section 40, the person must meet the condition provided in the proviso. The Appellant submits that once an association comply with the provisions Section 225 of the 1999 Constitution (as amended) andSection 78 of the Electoral Act, 2010 (as amended) and is registered as a political party, the rights under Section 40 can only be derogated in accordance with the provisions of the Constitution,

cited PDP & ORS V. SEBASTINE & ORS (2014) LPELR 24364 (CA). Also, the Appellant states that it is totally misleading and false for the Respondent to submit that the case of the Appellants was whether or not the Respondent has powers to de-register a political party under Section 225A of the 1999 Constitution, however, by a further affidavit the Appellant challenged how the powers conferred on the Respondent under Section 225A of the 4th alteration can be lawfully exercised. Also, the Appellant challenged the procedure adopted by the Respondent in exercising its power under Section 225A and not whether the Respondent has such powers. Further, the Appellant states that an un-contradicted affidavit is treated as admitted, by the content of the Respondent Counter Affidavit, the Respondent did not depose to the contrary, nor exhibited any document to show that it gave the Appellants fair hearing exercising its power underSection 225A of the Constitution, this amount to facts admitted. Relied on NBC V. UBANI (PT. 1398) 2014; NB PLC V. AKPERASHI & ANOR (2019) LPELR 4726 CA. The Appellants submit that failure of the Respondent to depose to further

counter-affidavit to controvert the averments of the Appellant in the further affidavit and did not exhibit any document showing to the contrary that the Appellant was notified it amount to admitted and unchallenged averment. Cited the case of KOPEK CONTRUCTION LTD V. EKISOLA 2010, LPELR 1703; INAKOJU & ORS ADELEKE & ORS 2007 LPELR 1510; OKEREKE & ANOR V. ABA NORTH LGA (2014) LPELR 23770; ALLIED BANK OF NIG. LTD V. AKUBUEZE (1997) LPELR 429 SC; AKINTERINWA & ANOR V. OLADUNJOYE 2000 LPELR 358 SC; NDUKWE V. ACHA & ORS (1998) LPELR 1977 SC; LIMAN V. MOHAMMED (1999) LPELR 1783 SC. The Appellant submits that the entire arguments of the Respondent are useless and irritating in the sense that the Exhibit C, D and E wrongly relied upon by the trial Court are clear as to their content therein. There is nothing therein in the exhibits suggesting the exercising of power for assessment of political party’s performance in 2019 general election for the purpose of deregistration under Section 225A of the amended 1999 Constitution.

ISSUE TWO
The Appellant argued that the trial Court occasioned miscarriage of justice by holding that the

Respondent rightly exercised its power to de-register under Section 225A of the 1999 Constitution. The Appellant responded to the Respondent’s argument by stating all the issues canvassed in their brief show that indeed six months was too short and inadequate to assess the performance of a political party. Also the Appellants states that the certificate of registration of the 3rd Appellant was dated 14th August, 2018 and the general election was conducted in February, 2019 which the Appellants did not participate because of some corrupt staff of the Respondent, created leadership crisis for the 3rd Appellant which crisis led to non-participation in other subsequent election after the 2019 general election. The Appellants submits that they tendered Exhibits C, D and E to show that the Respondent has been relating and exchanging correspondence with the wrong person as its National Chairman, however, the trial Court relied on C, D and E to hold that the Appellants were given fair hearing, even after reading the content of the Exhibits C, D and E which had no link with the exercise of powers under Section 225A of the Constitution. The Appellant states that since the

law is clear on how agencies of government shall exercise their powers in Section 36(2) (a) of the Constitution, it is basic principles of equity and equity acts in conscience and equitable remedies are discretionary. Relied on NICON V. POWER & IND ENG CO.LTD (1986) 1 NWLR (PT. 14) 1 SC; MERCHANT BANK LTD V. FED MINISTER OF FINANCE (1961) ALL NLR 623; OBANOR & CO. LTD V. COOPERATIVE BANK LTD (1995) LPELR 24846 SC; GUFFANTI NIG. PLC V. PIDRELLA INSTALT-VADUZ & ORS (2012) LPELR 8027 CA; ECO BANK V. PATRICK (2017) LPELR 4264 CA.

The Appellants argued further that the entire submission of the Respondent further exposed the compromised nature of the Respondent in the conduct of elections, which have gotten judicial notice. Cited the case of INEC V. ADELEKE & ORS (2019) LPELR 47545 CA. The Appellants submits that they do not subscribe to do or die and highly compromised, corrupt and violent ridden electoral system which are the hallmark of the Respondent, further, the Appellants that the vision of the 3rd Appellant is to reform Nigeria’s democracy through voter education, sensitization and advocacy, through which we intend to

educate Nigerians on their manifesto and agenda and the need to vote-out corrupt politicians and their political parties, this is not feat that can be achieved within six months in a country of 36 states, particular against political parties that have been existing for more than 20years from 1999 since the return of democratic rule, which requires adequate time, not merely six months from the date of its registration and conduct of general election to a equitably and fair assets.

ISSUE THREE
The Appellants argued that in response to the Respondent’s argument on unsigned document, the Appellants state, once any document if filed, the counsel ceases to have access to it, only the Court officials will transmit the process to the respective chambers. Every other thing that happened thereafter was outside the control of the Appellants and their counsel who will not suffer the ineptitude of the officers of the Court or refusal of the trial Judge to grant Counsel application seeking to formally endorse signature on the reply on points of law. Also, the Appellant states that in the open Court and in the application letter that the service copy of the reply

served on the Respondent was duly signed and that the Respondent will not be prejudice if the Appellant is allowed to endorse his signature on the process. Relied on ALIYU V. ALMU (2013) LPELR 21857 CA.

ISSUE FOUR
The Appellant argued that the powers exercisable in Section 225A of the Constitution can be ripen when democratically conducted elections have taken place in all States level. The Appellant states that the Respondent was wrong in rushing to de-register the 3rd Appellant when opportunity have not been given to it to participate in democratically conducted elections in all the states and local governments of the Federation which is the duty of the Respondent and not the Appellant. Further, the Appellant states that the Respondent cannot deny Appellants the opportunity to participate in these elections before it can justly exercise its power to de-register under Section 225A of the Constitution. The Appellant cited GLOBAL EXECELLENCE V. DUKE (2007) 16 NWLR (PT. 1059) 22 andAG. BENDEL V. AG. FEDERATION (1982) 3 NCLR1 9 SC.

The Appellant urged this Honourable Court to set aside the entire decision of the trial Court and to grant all the reliefs sought in the originating summons.

RESOLUTION
Upon a careful consideration of the Notice of appeal, the record of Appeal and the briefs of learned Counsel in this appeal, the Court is mindful of adopting the issues donated by the Appellants for determination because they are the parties with a grouse against the judgment appealed against. It would be in the interest of justice to resolve all their areas of complaint. They shall be resolved in the order argued but issue one and two shall be considered together to avoid repetition.

ISSUE ONE & TWO
The two issues border on the Appellants’ complaint that the Respondent denied them fair hearing in the process leading to the de-registration of the 3rd Appellant. The ground of the allegation is that in the exercise of its powers under Section 225A, the Respondent relied on Exhibits C, D, and E to hold that the 3rd Appellant breached its precondition for remaining as a political party and thus deregistered it. The Appellants argument is that they were not called to be heard before the decision to deregister the 3rd Appellant.

(Pt.280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain. A suit or action designed, as the instant, to deny the persons most adversely affected as the 5th co-appellant, Hon. Ben Nwankwo, their right to audi alteram partem or an opportunity to be heard has no place in our adversal jurisprudence. Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ 57; (1987) 2 NWLR (Pt.58) 587.”Per EKO, J.S.C.

in the determination or imposition of a decision that is likely to affect the civil rights and obligations of a person, are bound and enjoined to strictly observe the principles of fair hearing. See R v. ELECTRICITY JOINT COMMISSION (1968) NMLR 102: ADEYEMI v. ATTORNEY-GENERAL FEDERATION (1984) 1 SCNLR p. 525: ADIGUN v. ATTORNEY-GENERAL OYO STATE & 18 ORS (1987) 1 NWLR (Pt.53) 682; OYEYEMI V. COM. FOR LOCAL GOVERNMENT (1992) 2 NWLR (pt.226) 661 at 67 AKIBU v. ODUNTAN (2000) 13 NWLR (pt.685) p.446; STATE v. AJIE (2000) 11 NWLR (pt.678) 434 and AKANDE v. NIGERIAN ARMY (2001) 8 NWLR (pt.714) P.1. This principle often expressed by the Latin Maxim “Audi Alteram Partem” meaning “hear the other side,” has been for long enshrined in our jurisprudence. These decisions deal with this general principle of natural justice.” Per GALADIMA, J.S.C.
The Respondent is therefore bound to observe rules of fair hearing in carrying out its Constitutional mandate under Section 225A of the 1999 Constitution.

The circumstances within which the complaint arose in this appeal were based on the import of correspondences between the parties, which the 3rd

Appellant annexed to it supporting affidavit (Exhibit C, D and E). The Appellants contend that it was meant to show that there was a leadership crisis in the matter engineered by Respondent’s corrupt official. However, they included the Respondent’s desire to also carry out assessment on 3rd Appellant’s qualification for registration and ultimately requesting the 3rd Appellant to show whether it still satisfied registration requirements and if it should continue to exist as a political party. The letters were duly received and the 3rd Appellant even asked for deferment of the visit which was not granted but it failed to be available for the inspection and it could not be ascertained that they still satisfied the constitutional requirement for its continued existence. The Respondent in exercise of its constitutional powers under Section 225A initiated the process. The trial Court relied on Exhibits C, D and E to hold that an opportunity was given and therefore the Appellants were given a fair hearing. The Appellants idea of fair hearing is when they are called to appear before a panel of assessors to present evidence of satisfying the

constitutional requirements. The circumstances when fair hearing can arise are varied and some do not necessarily include the physical meeting of parties. Exhibit D is quite clear as shown in the title of the letter: VERIFICATION OF COMPLIANCE STATUS OF POLITICAL PARTIES. It also listed items to be inspected at during the said visit. Exhibit E is to affirm the date earlier fixed after a request that the date be shifted.

The compliance requirements to be verified can be based on any of the items listed and can also cover all aspect under Section 225A of the 1999 Constitution (as amended) and the argument that a specific notice is to be issued on failure to satisfy the requirement on winning one seat in any of the categories listed under Section 225A of the Constitution is a non starter. This is because each of the items listed is a “stand alone” requirement and not necessarily conjunctive. And if during the verification more disqualifying factors are found, then the Respondent has unfettered right and duty to apply constitutional provisions and to de-register. The Appellants did not say they have presented any document in respect of the items listed in Exhibit D.

The Appellants also argued that Section 36(2)(a) requires that they be given opportunity to make a representation, I wonder what kind of representation other than supplying the materials that the 3rd Appellant has, to defend its right to exist and it asked for a shift in date for the visit to its office which was not granted. The 3rd Appellant did not allow the verification exercise and did not present documents to justify its continuous existence. If it had any result of its performance in the elections it should not have any difficulty showing it. The results of all elections held at the national level were with the Respondent (it conducted the elections) and so it knew the performance of the 3rd Appellant and therefore it was in compliance with the rule of fair hearing that it still requested the 3rd Appellant for materials to show that it still satisfies the requirements for registration.

Appellants alleged that the Respondent did not show how it gave the Appellants ample opportunity, this is preposterous as Exhibits C, D and E all attest to the ample opportunity given and these were documents presented by the same

Appellants, it is also admission against interest. Exhibit D is clear and states the purpose of the visit, which was to verify compliance with a list of items which are basic requirements of the existence of a political party. If the foundation is not shown, how then can other fundamental issues rest on what is nonexistent? The 3rd Appellant failed to establish such simple and basic items listed in Exhibit D. Section 225A provides for the assessment of political parties to determine compliance with the requirements for their registration. If the basis for the registration is not established every other thing will also fail.

The materials required by the Respondent for assessment were not to be by way of oral presentation but documentary, location of office and until those materials are presented the question of any physical meeting cannot arise. Even in ordinary trials, processes are first filed, issues joined before hearing or trial based on the materials can commence. The two stages do not come up at the same time. In this case, the Appellants failed the first stage, it failed to be available for inspection, it failed to present documents for assessment

on its still possessing the required qualifying particulars for registration on the 10th December, 2019 as requested for by the Respondent pursuant to Section 225A (e) of the 1999 Constitution (as amended).

Interestingly, the 3rd Appellant did not comply with presenting any documents as requested for by the Respondent. So on what basis would a meeting for assessment be called? Having failed to utilize the opportunity given to the 3rd Appellant, the Appellants candidly have no basis and cannot complain. Assuming the Respondent did not write to demand for the documents for assessment, and proceeded to act, the Appellants would have had a genuine complaint, but that is not the case and therefore the complaint that they were not afforded fair hearing is a ruse and cannot stand. Fair hearing does not mean a person must be forcefully heard. Once he is given ample opportunity to be heard, the constitutionally guaranteed principle of fair hearing is fulfilled.

The Appellants also contended that Sections 39 and 40 of the 1999 Constitution which gave every citizen the right to belong to a political party of his choice, cannot be taken away by

Section 225A of the Constitution. The Appellants misconceived the provision of Section 39 and 40 of the Constitution. The freedom is that of association and to form or belong to a political party is hinged on prior satisfying the registration requirements. Yes, an association can transform into a political party but the initial right giving rise to that is primarily the right of association which was not taken away. And furthermore, any association that becomes a political party, then it must comply with all requirements as laid down by the Constitution and Electoral Act for registration. Therefore, the two Sections 39 and 40 were not suspended, altered, or amended by Section 225A of the Constitution as contended by the Appellants.
There is nothing in Section 225A that gives the Respondent the right to exercise discretion in implementing the provisions of Section 225A and therefore there is no question of giving the 3rd Appellant an opportunity to explain why it could not satisfy constitutional requirements to justify its continued existence contrary to the provisions of the Constitution.

It is common with counsel to always scream that fair hearing was denied when in fact

no breach was occasioned, they usually disregard the facts upon which the alleged breach must be assessed, this was the observation of AUGIE, JSC in the case of GOVERNOR OF IMO STATE & ORS V E.F. NETWORK (NIG) LTD & ANOR (2019) LPELR-46938(SC) thusly:
“The Appellants are in this Court holding a banner with lack of fair hearing on it. But fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, a breach of which will nullify the proceedings in favour of a victim. It cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached – see Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. In other words, it is not enough for a party alleging such a breach to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide the case in his favour, just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading- see Adebayo V. A.-G., Ogun State (2008) 7 NWLR (Pt.

1085) 201, wherein this Court per Tobi, JSC, hit the nail on the head, as follows: Parties, who have bad cases, embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation. They make the defence in most inappropriate cases because they have nothing to canvass in their favour. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. It is a formidable and fundamental constitutional provision available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutionality alone because it is not available to them just for the asking. In this case, it is quite clear that the trial Court bent over backwards to accommodate the Appellants, who were

nonchalant about the case. They failed to utilize the opportunity given to them by the trial Court, and cannot be heard to say that their right to fair hearing was violated.”

observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causasua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro V. Onuma (1990) 3 NWLR (Pt.136) 22. The effect of a denial of fair hearing is trite in law. In other words once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court, become a nullity.” Per KEKERE-EKUN, J.S.C.

The reliance on a certificate of registration to contend that they have been registered and do not need to be assessed for qualification is untenable. The fact that they were registered earlier does not mean that the Appellants still satisfies the requirement for registration which could be lost after registration. For example, where the party fails to maintain a National Headquarter or cannot show its leadership list and NEC members, they will of course not

continue to be kept in existence because they would have breached the requirements for registration. Qualification could be lost immediately after registration and there arises the need to continually assess political parties to be sure they maintain their qualification for remaining as a political party.

The Appellants failed to convince the Court that it was registered close to the general elections and they could not have performed well at the elections and therefore they should have been exempted from the assessment. Well, there is not such discretion given to the Respondent and the Constitution did not give any moratorium or time to mature before assessment. There is nothing unjust or unreasonable in strictly applying the provisions of the Constitution. The Appellants could have waited to present its application for registration after the elections in order to be prepared for the next elections in 4 years to come. The decision to be registered shortly before general elections is that of the Appellants and their failure to make a good showing in the general elections cannot be attributed to the Respondent and cannot stop it from carrying out its constitutional duty.

In the light of above, the facts in this appeal do not support the complaint of the Appellants as presented in issue one and two. Accordingly, I resolve issues one and two against the Appellants.

On issue three donated by the Appellants, they contended that the trial Judge erred when he struck out the Appellant’s Reply on points of law because it was not signed which they stationed the lapse to mistake of counsel. They applied after judgment to be allowed to sign when the Court was functus officio. Basically, the question here revolves around an unsigned Reply on points of law. It is trite that generally an unsigned document is worthless, see OMEGA BANK (NIG) LTD V O. B. C. LTD (2005) LPELR-2636(SC) where the apex Court held:
“A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious.” Per TOBI, J.S.C.

And with particular reference to a Court process, the apex Court recently in the case of WILLIAMS & ANOR V. ADOLD/STAMM INT’L (NIG) LTD & ANOR (2017) LPELR-415599(SC) said thusly:

“There is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by a legal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and Solicitor as provided for in Sections 2 and 24 (1) (2) of the LPA Cap. 111 LFN 2004 is incompetent and liable to be struck out. See: Oketade vs Adewunmi (supra); Okafor Vs Nweke (supra): F.B.N. Plc. Vs Maiwada (2013) 5 NWLR (Pt. 1348) 1433. ln S.L.B. Consortium Ltd. Vs N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 @ 331 B-332A, this Court affirmed its earlier decision in Registered Trustees of Apostolic Church Lagos Area vs Rahman Akindele (1967) NMLR 263 and held that a process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.” Per KEKERE-EKUN, J.S.C.
This position had since been settled by the apex Court and the trial Judge is bound by stare decisis to apply the decision of the apex Court as there is

no discretion in such matters. Mistake of counsel does not come into play and there was no error on the part of the Judge in applying precedent to facts similar to the authority relied upon. The legal requirement is that all processes filed by Counsel must be signed and dated. It did not refer to originating processes alone. The law does not accommodate mistake of Counsel, who in any case should comply with the law. It is not a discretionary issue that the trial Court ought to do otherwise, it is a legal requirement.

In any case, the Appellants have not shown the miscarriage of justice occasioned by the striking out of the process. Appellants failed to show the effect the reply would have had if it were considered. Therefore, assuming the trial Court was in error, the error did not occasion a miscarriage of justice, the complaint is therefore unsubstantiated and must be discountenanced. I resolve issue three against the Appellants.

On issue four, the Appellants contend that the power given to the Respondent under Section 225A can only be rightly exercised after elections would have held at all levels in the country and not as it did in this case.

Section 225A of the 1999 Constitution (as amended) the 4th Alteration No. 9 Act, 2017 provides as follows:
“the Independent National Electoral Commission shall have power to de-register political party for-
a. Breach of nay 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 Government election.
c. Failure to win at least-
i. One ward in chairmanship election;
ii. One seat in national or state House of assembly; or
iii. One seat in the councillorship.”
This is a clear Constitutional provision and in interpreting a constitutional provision, Superior Courts in a plethora of decisions set out rules to guide in how to interpret constitutional provisions. One of such is the case of SKYE BANK V IWU (2017) LPELR-42595(SC) and it states as follows:
“In the interpretation of constitutional provisions, the Court must bear certain principles in mind, as stated in Agbaje v. Fashola (2008) ALL FWLR (Pt. 443) 1302 @ 1337 B-C. They are as follows:

(a) a liberal approach to the interpretation of the Constitution or statute should be adopted; (b) the Court must employ care and take the circumstances of the people into consideration; (c) the historical facts, which are necessary for comprehension of the subject matter may be called in aid; and (d) the mischief which the legislation was made to deter is arrested. The following authorities were cited: Rabiu v. Kano State (1980) 8-11 SC 130; Uwaifo v. A.G. Bendel State (1982) 4 NWLR 1; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 @ 80-81. It was held by this Court in Obi v. I.N.E.C. (2007) 11 NWLR (Pt. 1046) 560 @ 664 B-D that it is an accepted principle of the interpretation of the Constitution (or indeed any statute) that the provisions should be taken as a whole. It was further held that it cannot be presumed that any clause in the Constitution is intended to be without effect. His Lordship, Nweze, JSC in Saraki v. F.R.N. (2016) 3 NWLR (Pt.1500) 531 @ 631-632.” Per KEKERE-EKUN, J.S.C
The quoted Section 225A is so clear and unambiguous and therefore should be given a literal

interpretation without any qualification. The apex Court also in the case of AG BENDEL STATE V AG OF THE FEDERATION & ORS (1981) 9 S.C 1 at 78 -79 also listed the principles to be considered in the interpretation of Constitutional provisions.
The Appellants here have urged the Court to interpret the Constitution differently, devoid of giving the clear words their ordinary meaning. They contended that the Respondent can only exercise the powers given by Section 225A of the Constitution only when elections have been held at all levels in all the States and the Federation and hinged it on the condition that failure to win at least 25 percent of the votes cast in one State of the Federation in a Presidential election or 25 percent of the votes cast in one Local Government Area of a State in a Governorship election; failure to win at least one ward in a chairmanship election, one seat in the National or State Assembly election or one seat in a councillorship election cannot be achieved under one election. They argued that the assessment cannot be conducted after elections in the FCT as against all other Local Government Areas recognized by the

Constitution and therefore the condition precedent for the exercise of the power was not ripe because it means the Respondent applied the provision arbitrarily. The Appellants have failed to appreciate the Constitutional provision in its legislative and interpretation context because punctuation marks play a major role in the interpretation of an enactment, see Section 3(1) of the Interpretation Act. And Section 10(1) of the Interpretation Act provides that where enactment confers a power or imposes a duty, the power may be exercised and duty must be performed from time to time as the occasion demands. Furthermore, Section 18(3) of the Interpretation Act gives a guide on the use of the word “or” and the word “other” shall be considered disjunctively where ever they occur in an enactment, see ABIOYE & ORS V YAKUBU & ORS (1991) LPELR-43(SC) where the apex Court held thus:
“…Under Section 18(3) of the Interpretation Act, 1964: ‘The word “or” and “other” shall in any enactment be construed distinctively and as implying similarity’. In other words ‘the word “or” means that the following words are not to be construed as similar

to the preceding words’: Nasir v. Bouari (1969) NSCC 6.” Per BELLO, J.S.C
See also FRN V IBORI & ORS (2014) LPELR-23214(CA) where this Court per Saulawa, JCA (as he then was) said:
“As aptly postulated by the Appellant’s learned senior counsel, the words “or” and “other” couched in the said phrases in Section 14 (1) (a) (supra) are disjunctive. See Section 18(1) of the Interpretation Act CAP. 123 Laws of the Federation of Nigeria, 2004, thus: “18(1) – … (3) the word ‘or’ and the word ‘other’ shall in any enactment, be construed disjunctively and not as implying similarity.” Inarguably, it’s an established principle, that a disjunctive particle generally expresses or marks an alternative in a statute. It indicates or provides a choice (option) of one among two or more things. Thus, the disjunctive particle (‘or’, ‘other’ as in the instant case), prominently plays a functional role depicting or showing an alternative between different or unlike things. See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt.1025) 423 @ 612 paragraph B – C per Niki Tobi, JSC.” Per SAULAWA, J.C.A (as he then was).
The power given to the Respondent by the Constitution used

the word “shall” directing the Respondent to exercise it over the listed item. It is no longer in doubt that the interpretation of the word “shall” generally in any enactment connotes imperativeness and a command, see AGBITI V. NIGERIA NAVY (2011) LPELR 2944 (SC) wherein the apex Court held as follows:
“The statutory interpretation given to the word shall by the Courts give the connotation of a word of command or exhortation. It denotes obligation and gives no room for discretion. Therefore the word “shall” engaged in Sections 129 and 133 of the Armed Forces Act gives the unmistakable impression that what was to be done is mandatory and peremptory. Ifezue v. Mbadugha (1984) 15 SCNLR 427; Mokelu v. Fed. Commissioner for Works & Housing (1976) SC pg.35; Aroyewun v. Adebanji (1976) 11 SC 33; Amokeodo v. I.G.P. (1999) 6 NWLR pt.607 pg.467; Bakoshi v. Chief of Naval Staff (2004) 15 NWLR pt.896 pg.268 at 291; Katto v. CBN (1991) 1 NWLR pt.214 pg.126 at 147; Achineku v. Ishagba (1988) pt.89 pg.411; Maiwada v. First Bank of Nigeria Plc (1997) 4 NWLR pt.500 pg.497.” Per ADEKEYE, J.S.C (P. 39, paras. A-D)

Therefore, on any of the circumstances listed in Section 225A of the Constitution, the Respondent is commanded to assess and if any registered political party is defiant in any of them, then the Respondent shall de-register such political party. It has no discretion nor gives room for exemption. The contention of the Appellants that it was registered merely months to the general elections and it should not be assessed on the same level as older political parties is preposterous and untenable. As at the general elections of 2019 the 3rd Appellant was a duly registered political party and its inability to contest against older parties is not ground for exemption.
In this situation, the request to visit the 3rd Appellant for assessment was not allowed and therefore the Appellants who denied access to its records cannot complain that they were not given a hearing before it was de-registered. A party who was given an opportunity but failed to avail itself cannot complain that they were not heard before it was de registered. A party can qualify to be registered and lose some of its qualifying factors immediately after registration and therefore the need to assess and confirm that

political parties at any given point in time are duly constituted according to law is a duty the Respondent must carry out as mandated by the Constitution.
On the whole the issue is resolved against the Appellants.

Having resolved all the issues against the Appellants, the appeal lacks merit and must as of necessity be dismissed for being unmeritorious.
In the light of above, the judgment of HON. JUSTICE N.E. MAHA delivered on the 22nd July, 2020 is hereby affirmed.
I make no order as to cost.

PETER OLABISI IGE, J.C.A.: I agree.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; YARGATA BYENCHIT NIMPAR, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

OKERE KINGDOM, ESQ. For Appellant(s)

AGADA ALACHI, ESQ., with him, SUMMER OKIBE For Respondent(s)